Sponsor licences within the social care sector: common issues and recommendations for the future

A 2022 report revealed that on any given day there were around 165,000 vacancies within the social care sector. It is therefore unsurprising that there has been an apparent surge in sponsor licence applications within this sector. Organisations are clearly seeking to look further afield to deal with the unprecedented levels of understaffing and fulfil their recruitment needs. 

Despite the obvious need for a sponsor licence, the Home Office appear to be focusing (quite deliberately) on sponsor licences within the care sector and taking steps to ensure organisations are compliant with their sponsor duties. 

Failure to remain compliant can lead to disastrous consequences, including hefty fines (up to £60,000 per worker) and in some cases, the revocation of the sponsor licence which could mean that all sponsored workers would have to cease employment with the organisation.

In this blog, we discuss the Home Office’s current focus on the care sector, common Home Office issues, the disastrous consequences for failing to remain compliant, and recommendations for your social care business.

Focus on the social care sector
In recent months we have received an influx of enquiries from sponsor licence holders within the care sector – the Home Office appear to be taking robust action to ensure compliance, including conducting announced and unannounced visits at the business premises recorded on the sponsor licence. 

During a visit, a Home Office representative will physically attend the business premises, assess the organisation’s systems, policies and procedures, review employee files and conduct thorough interviews with the Authorising Officer and sponsored workers to ascertain whether the organisation is compliant. 

During interviews with sponsored workers, the Home Office may ask wide-ranging questions to ascertain compliance including, checking that the role the sponsored worker is doing is in line with the role they have been sponsored to do, and that they have the right skills, qualifications, and experience to conduct their care duties. 

The apparent focus on the care sector is further demonstrated by the Home Office’s recent announcements to restrict the viability of work visas within this sector. From 11 March 2024, employers can only sponsor care workers under occupation codes 6145 (care workers and home carers) and 6146 (senior care workers) if they are registered with the Care Quality Commission (CQC). Additionally, dependant family members will no longer be permitted to accompany workers under these occupation codes. You or your workers may wish to consider making relevant applications before this date.

Common issues within the social care sector

The Home Office will want to see that the organisation is complying with various duties and responsibilities of a sponsor licence holder. However, we note from recent matters and enquiries, that there are a several policies and procedures unique to the care sector that are leading the Home Office to suspect that an organisation is failing to comply with sponsor duties. For example:

• Fluctuating working hours: Within the care sector, we note that working hours may fluctuate month to month due to changing business needs. However, as a sponsor it is imperative that sponsored workers are being paid in line with Home Office’s records and the Immigration Rules. If the Home Office find that sponsored workers are not being paid in line, the Home Office will likely take action against the organisation. 

It is therefore important to have systems in place to ensure workers are being appropriately paid? or to report changes to salary or working hours in a timely manner. An organisation should be prepared to clearly explain any fluctuations to the Home Office to remain compliant.

• Contracts with local authorities: Within the care sector, we note that it is common practice for a sponsor to have contracts with local authorities to provide care services and sponsored workers may be used to fulfil these contracts. Although sponsored workers can work on client contracts, this is a very complicated area of immigration law and can require further analysis.

To be compliant, the sponsor would have to ensure the nature of the contract is in line with the Home Office’s strict guidance, including showing that the sponsor has full responsibility for all of the duties, functions and outcomes or outputs of the job the worker will be doing. It must be categorically clear to the Home Office who the employer is.

As this arrangement is common practice, it would be critical for a sponsor to be able to evidence full responsibility to avoid unwanted adverse consequences. 

• High number of Certificates of Sponsorship (CoSs) assigned: As mentioned above, there has been unprecedented levels of understaffing within the care sector. Therefore, once granted a sponsor licence, the staff numbers within a care organisation may rise exponentially. Although this is perfectly permitted, the Home Office may scrutinise whether all workers are suitable for the role and whether the organisation is able to financially support their increased workforce.

It is therefore important to ensure the documents evidencing the sponsored worker’s suitability for the role are held on an easily accessible file. Additionally, the company accounts/ forecasts should demonstrate the company’s ability to financially support their workers.

Failure to comply 

It is important to ensure sponsor duties are complied with and that this can be clearly evidenced to the Home Office to avoid potentially disastrous consequences, some of which we outline below:

• Suspension / downgrade of sponsor licence – during this time the organisation cannot employ any new sponsored workers, which could impact business operations and the ability to fulfil contracts.
• Revocation of the sponsor licence – the organisation would have to stop employing all sponsored workers (unless the sponsored workers are able to switch into another immigration category) which again could impact business operations and the ability to fulfil contracts.
• Fines of up to £60,000 per illegal worker if it transpires that said worker does not have the right to work for the organisation.
• Reputational damage

Recommendations

It could be critical to your organisation for you to be proactive and conduct the relevant internal audits of your processes, systems and sponsored workers to ensure you are prepared for a Home Office visit and are able to clearly demonstrate compliance.

The Immigration Team at Irwin Mitchell have extensive experience dealing with sponsor licence related matters. Please do not hesitate to get in touch with Mandeep Khroud, a Senior Associate Solicitor within our Immigration Team, should you need our assistance.