The Home Office issued last week a long policy guidance on the structure and form of Compliance Visits. Previously there was limited guidance on this matter so this document should be welcomed by sponsors and legal representatives who have been calling for a more transparent process. The Home Office is carrying out unannounced visits more often.
The undertone of this new policy suggests that the government is clamping down on immigration.
If there was ever a good time for migrants and sponsors to be prepared for a compliance visit, that would be now!
Announced vs Unannounced Visits
The Home Office can carry out both types of visits, although this is possibly the first time they have put in writing that the advantages of unannounced visits far outweigh those where sponsors have been given enough notice to “alter their natural working environment for the purpose of the assessment”.
The Home Office does recognise that the disadvantage of unannounced visits is that the organisation may be closed or the right personnel may not be available to request all of the required information from. But even in this case they state that they should continue with the visit anyway. The audit will probably not go ahead if the organisation is closed, but if you were hoping to buy time by telling the Home Office officers that the key person is not available, this will probably not work as the Home Office will then seek to speak to an owner, a director or anyone involved in the day-to-day running of business. Claiming there is absolutely no one around or denying them access to your premises is not advisable as it could raise more doubts and could get you marked down as non-compliant.
If the Authorising Officer is not available and the Home Office officers haven’t found the most appropriate person to talk to, you can inform them you would prefer for them to come back. But they may still choose to continue the interview if they can gather enough evidence to make a re-visit unnecessary. From our experience, if they try to visit you on more than one occasion during business hours and the business is closed, this may lead them to question whether the business is in fact active and trading.
Migrant file checks
It is commonplace for the Home Office to check individual migrant files in compliance visits and now they explain the number of such files to be checked
When the Home Office visits sponsors, they usually interview migrants to confirm that they perform the specific duties and responsibilities stated in their job description, COS and employment contract, that they are paid the correct salary rate and meet all the requirements of their tier and category.
Where there are fewer than 3 sponsored migrants, all will be interviewed. Where there are 3 or more staff or students, normally a minimum of 3 migrants will be interviewed.
If breaches are identified during the interviews, then more of them will be conducted. If there is a language barrier and an interpreter is needed, this is to be noted by the Home Office and the interview should stop. Although this is not mentioned in the guidance, if an interview stops for this reason it may well give rise to a breach in itself as language proficiency is an essential requirement for almost all points-based tiers and most migrants would be expected to have an acceptable level of English to perform their duties .
You should request a copy of the interview record.
Timescales for producing documents
If some of the documents requested for review are not immediately available, you should be allowed a reasonable time to produce them. How long will depend on the situation.
In most cases, 3 working days will be appropriate and in exceptional circumstances you may be allowed up to 20 working days. If the visit is announced and you are told which documents will be required during the visit, the officers will decide the timescale at their own discretion.
If the issue is that key personnel are not present or there are special circumstances (eg. regulatory seizure of documents/illness of personnel) then the timeframe will be agreed with the business. An example is given where the Authorising Officer is out of the country and will not be back for a week, it would be reasonable to expect all the documents to be provided in 10 working days in this case.
Tier 2 and 5 overall rating
The overall rating for Tier 2 or Tier 5 sponsors will be based on their compliance with HR requirements in 5 areas which are not explicitly mentioned.
Where sponsors have met the requirements in all 5 areas, their overall HR score will be ‘Met’. If you have scored ‘Not Met’ for any of the compliance areas on a post-licence compliance visit, you overall score will be ‘Not Met’.
If you score ‘Not Met’ in the area of ‘application of general sponsor duties’, the likely outcome could be anything from downgrading your licence to revoking it, depending on reasons for not meeting this assessment area. Your scores in other areas will also be taken into account to recommend suspension or revocation.
Factors to be considered will be: the seriousness of the case, the sponsor’s overall willingness and ability to meet their sponsor duties and whether or not they pose a threat to immigration control.
If you do not cooperate during the visit or are unwilling to provide information, you are likely to be marked down for this too.
Failing to meet all 5 areas will result in suspension in almost all circumstances.
What to do next?
Carry out a self-assessment. Make sure you have the right HR systems in place and that you actually use them to keep a record of everything that is required. If necessary, ask for a mock audit from your legal representatives to see where you may need improvement. Most sponsors think they are fully compliant until they have an audit and realise just how deep the Home Office will dig, so the best thing you can do is to get there before they do.
Contact one of our lawyers if you wish to enquire about this further.