Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business

“Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business” is locked Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business

For employers and HR professionals sponsoring Tier 2 highly skilled workers from overseas, compliance with immigration laws is crucial.

Immigration compliance does not stop with the initial identity checks made when a candidate starts their employment with a company. Rather, it is a continuing duty. In fact, to test whether employers or sponsors are complying with their continuing duty to prevent illegal working in the UK, UK Visas and Immigration (UKVI) may make announced and unannounced visits to the sponsor’s premises.

Most sponsors and HR professionals are conscientious and take their obligations very seriously as evidenced by the number of UKVI audits that take place without any significant issues.

Get things wrong, and sponsors can face a myriad of penalties including heavy fines of up to £20,000 per unlawful worker, damage to their reputation, the inability to employ their highly skilled overseas staff or hire new staff from overseas, possible closure of their premises for 48 hours and even worse, imprisonment.

What is an immigration compliance audit?

UKVI’s officers will visit a sponsor’s site or sites to confirm the following:

  • The sponsor can offer employment to overseas workers;
  • The information provided by the sponsor is accurate and up-to-date;
  • The company is genuine and lawfully operating in the UK;
  • The sponsor is able to comply with immigration laws and their sponsorship duties.

UKVI may do this by:

  • Reviewing the information held by the sponsor and contrasting this with the information provided in the online application for a sponsor licence;
  • Speaking with the overseas employees, their managers and recruitment managers;
  • Speaking with members responsible for overall day-to-day UKVI online reporting duties;
  • Reviewing the personnel files of overseas workers and sometimes spot-checking the files of resident workers to ensure that those workers have an entitlement to work in to the UK in the role recorded; and
  • Making an overall assessment of the sponsor’s HR systems, data held and record-keeping to meet their ongoing legal obligations.

It should be noted that sponsors are required to cooperate with UKVI during immigration audits.

During an immigration compliance audit with Thomas Chase Immigration, sponsors or those looking to become sponsors can expect the following:

  • Interviews to be conducted with key personnel identified in the online sponsor licence application;
  • A review of the sponsor’s processes and procedures against UKVI’s requirements;
  • A detailed review of sample files held for overseas workers to confirm best practices are being met;
  • Feedback followed by a written report of findings with recommendations to help the sponsor develop good or better systems.

Where necessary, the sample review of files may need to be widened.

3 Ways that an immigration compliance audit can help

So let’s put this into context by highlighting 3 key ways in which an immigration compliance audit with an immigration provider can help businesses.

  • Providing reassurance prior to an announced UKVI visit

An immigration compliance audit can a for an assist with the preparation of an announced UKVI audit by providing reassurance to sponsors and HR that their systems are appropriate and effective.

It is not uncommon for companies to request an audit to flesh out any internal issues and assess any training gaps.

When conducting an audit at one company, it became very clear that the imminent departure of one the senior members of the HR department would leave a huge gap in knowledge. However, to avert this, training sessions on areas such as right to work checks and the Resident Labour Market Test were arranged.

Training, coupled with ongoing support and advice helped the HR department continue to meet its ongoing obligations and demonstrates a clear example of how an audit can pinpoint things that have not yet surfaced.

Also, in few circumstances, I’ve found that sponsors have utilised the audit to review their working relationship with an immigration provider or get a feel for them before contracting their services again in future.

Applying for a sponsor licence

As stated above, UKVI may visit the sponsor at their site as part of the application consideration process for a sponsor licence. To ensure success, it is important to understand who will manage sponsorship of overseas workers within the company to enhance the success of an application.

An audit can reveal if the right roles, such as that of an authorising officer, have been assigned to the most suitable personnel. It can also highlight whether the company has effective HR systems for monitoring their future employees’ immigration status.

Not only that, but following an audit by an immigration provider and proving any recommendations are followed, the company should feel relatively confident ahead of any UKVI audit or queries.

Ensuring consistency across various UK branches

Managing various company branches can be difficult enough regardless if the company has grown organically or merged or acquired other sites.

An immigration compliance audit can identify any gaps in processes and assess whether key changes have been reported in the proper manner.

In one instance, I worked with a university that had joined forces with two other education establishments to form one entity. As you can imagine, this lead to significant restructuring and downsizing of the HR department, with one site taking most of the responsibility for the other sites due on their immigration experience.

This was seen as a good financial and strategic move by the university, but left the HR department at the main site overwhelmed by their additional personnel and immigration obligations.

An immigration compliance audit was secured and revealed that the main site’s processes and procedures were effective, probably because of the ongoing support and systems that we had developed. The other sites had decent systems but gaps were identified for various reasons as well as an incompatibility with the HR systems.  It was reasonable straightforward to suggest a plan of action in the debriefing to address the issues identified; develop consistent systems for monitoring future employees’ immigration status across the 3 sites and schedule dates to meet and track progress.

And…

There is another reason. Having proper HR systems and procedures in place, can provide protection by way of a statutory defence, should a sponsor unwittingly find that an unlawful worker has been hired.

Conclusion

Hopefully, the above points have shown the benefits of securing an immigration compliance audit for sponsors or businesses looking to become sponsors of overseas workers.

Immigration audits can be carried out by UKVI officers at any time in the sponsoring process, be in at the application stage or after a sponsor licence has been in place for a long time. By getting an audit, a sponsor can gain clarity of the extent to which their HR processes and systems is helping them meet their continuing obligation of preventing illegal working or identity areas to address. Be it, applying for a sponsor licence, checking compliance across various sites, seeking help before an announced visit or just seeking assurance, an immigration compliance audit has many benefits. By securing an immigration compliance audit, and following the recommendations, sponsors can focus on what they do best, providing their customers with great products and services.

3 Simple Steps to Confident Right to Work Checks

Thomas Chase Immigration - Right to Work Checks

Right to Work checks can cause HR professionals and businesses no end of stress. Get it wrong and the Home Office can impose heavy (and sometimes crippling) fines or civil penalties of £20,000 per unlawfully employed person. A sponsor licence can be suspended and then there is the reputational damage and at worse, criminal convictions of up to 5 years for serious offenders.

As if that wasn’t bad enough, Immigration Officers have the power to effectively close business operations for up to 48 hours. It’s not uncommon for HR professionals to confess that they are absolutely scared of getting this wrong and that hiring nationals from outside of the UK and EU can cause a sense of nervousness.

Yet finding a fantastic applicant to fill a key skills gap is a cause for celebration. The fact that the applicant has signed the employment contract and turned up for their first day of work is credit to the company and should be the start of an amazing journey together between employer and potential employee.

So how can HR professionals feel confident about the Right to Work checks? I advise them to follow these 3 simple steps:

  1. Obtain
  2. Check
  3. Copy and Retain.

Obtain

The key here is documents, documents, documents. Whilst the Home Office has placed a legal obligation on employers and HR professionals to check that the applicant has a right to legally work in the UK before the applicant starts working, the Home Office has also provided a list of original documents that it believes properly evidences such entitlements.

Those documents are partitioned into ‘Lists’ according to the current immigration status of the applicant.

List A Documents

Where an applicant has a permanent right to work in the UK, HR professionals may accept any documents from List A. The documents must be seen in their original format and must be obtained prior to the applicant starting their employment with the company.

As the applicant has a permanent right to reside and work in the UK, HR professionals will not need to conduct any further Right to Work checks for that applicant.

The company will have also established a continuous statutory excuse throughout that time. As a result, if for some reason, the applicant was later found not to have a permanent right to work in the UK, the employing company will have an excuse in law against liability for a civil penalty.

List A documents include:

1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland
3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland
4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland
5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

List B Documents

Where an applicant has a limited right to work in the UK, List A documents will not be appropriate. Instead, HR professionals may accept documents within the List B class of documents. Again, the documents must be seen in their original format and accepted prior to the commencement of employment.

Follow-up Right to Work checks will be required due to the temporary nature of the applicant’s stay in the UK. Further checks will normally be required when the employee’s temporary permission to be in the UK has expired and been renewed.

Documents in this category are divided into 2 groups.

List B – Group 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
2. A current Biometric Residence Permit endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office  to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence
4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

Here, HR professionals have a time-limited statutory excuse which expires when the employee’s permission to be in the UK expires. Follow-up checks will need to be carried out when the document evidencing their permission to work expires.

List B – Group 2

1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question

For List B – Group 2, HR professionals have a time-limited statutory excuse against liability which expires 6 months from the date specified in the Positive Verification Notice. HR professionals should therefore carry out a follow-up check when this notice expires.

Check

Once the documents have been obtained, HR professionals must check that the documents are:

  • Genuine; and
  • The applicant presenting the documents  is the rightful holder; and
  • The applicant is allowed to do the type of work detailed in their employment contract and Certificate of Sponsorship, where applicable.

It’s worth noting that the Home Office do not expect HR professionals to be forgery or immigration experts. However, there are some common sense questions that HR professionals should ask themselves when checking documents:

1. Does the photograph on the document match the appearance of the person before you? For instance, the document may be genuine but the applicant in front of you may not be entitled to it.
2. Does the document appear to be genuine? Does it appear to have been tampered with? Again, expertise in forgery is not necessary but you will be amazed at the spelling mistakes some forgers make with the names of countries and the word ‘Embassy’.

For some EU documents that differ from one European country to the next, it can be difficult to determine which document is genuine and which is not? If presented with an EU document and you are not sure if it is genuine, I recommend making a quick visit to PRADO – Public Register of Authentic travel and identity Documents Online at http://www.consilium.europa.eu/prado/en/prado-start-page.html which is a great source of information in such instances.

3. Is the date of birth consistent with the appearance of the person in front of you? If not, further documents may need to be provided.
4. Does the applicant still have valid leave to be in the UK? If the document evidencing their leave has expired, evidence should be sought and verified to establish if an application has been submitted to the Home Office for further leave to stay in the UK.
5. Are there any work restrictions on the applicant’s ability to carry out the work stated in their employment contract? For instance, some students may take up employment though there may be restrictions placed on term-time employment.
6. Still have doubts? Have you checked the reasons for any differences in names across documents? Such doubts need to be handled with care so as to prevent the employer/ employee relationship getting off to a bad start. There may be a plausible explanation for discrepancies which can be reasonably addressed by way of, for instance, inspection of an original marriage certificate, divorce decree, deed poll. If so, supporting documents will need to be photocopied and a copy kept on file.

Copy and Retain

The applicant has provided their documents, the documents appear to be in order and the applicant has valid leave to be in the UK and can perform the duties required.

The final step to key. In order to demonstrate that the Right to Work checks have been properly carried out and prevent and liability against a civil penalty, HR professionals are advised to photocopy and retain the documents. This administrative area is where companies tend to fall short in their immigration responsibilities.

When photocopying documents, it is advisable to make a clear copy of each document. The copy should be one that cannot be altered and there needs to be a note made of date that the checks took place.

The copy of the document will need to be obtained in the personnel files either electronically or in hard copy.

For passports, HR professionals need not photocopy the whole documents, just the pages which contain details of the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, information showing the applicant’s entitlement to be in the UK and ability to undertake the work detailed in the employment contract. For other documents, it may be necessary to copy the document in full. For example, both sides of a Biometric Residence Permit and Marriage Certificate demonstrating a change in name.

Conclusion

By taking the above steps of Obtain, Check, Copy and Retain, HR professionals should find Right to Work checks to be less complex and less difficult to carry out. If in doubt, seek expert immigration advice!

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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