Immigration Blog: Sponsor licence compliance action - threats and remedies

Introduction

Obtaining and maintaining a sponsor licence is fraught with complexities. UKVI sponsorship statistics indicate a marked increase in the number of sponsor licences suspended or revoked of late – there was a striking surge in the fourth quarter of 2023 [1], meaning sponsors and solicitors representing them need to be on their guard and up to speed.

Here, we provide some guidance about what to do when a sponsor is faced with the threat of downgrading, suspension or revocation. Whilst we are concentrating on the consequences for the employer sponsor, there is often work to be done advising migrant workers on their options too – for once a licence is revoked their lawful residence is likely to be curtailed to 60 days, presuming they are not thought to be complicit with the sponsor’s misdemeanours.

Representations when a licence is under threat

The UKVI Guidance allows sponsors 20 working days after being notified of a possible licence downgrade or suspension to submit representations and evidence, and seek a review of the decision. This provides an opportunity to address the concerns of UKVI and hopefully avoid any further action being taken.

At this stage, we suggest that sponsors should:

1. Seek disclosure of any material which UKVI relies upon which is not in the sponsor’s possession;
2. Provide polite and contrite written representations addressing each and every concern raised by UKVI;
3. Review the grounds and focus upon those which can be firmly rebutted - this will usually be the case because of UKVI error as to the existing facts or because fresh evidence can be advanced. Advisors who are very familiar with the system might put forward their own version of an “action plan” whereby human resources systems could be improved;
4. Provide comprehensive evidence by way of witness statements and/or documents to address each of the criticisms raised, leaving no room for ambiguity or misunderstanding – every point should be supported by relevant evidence.

The importance of advancing legally forceful and factually accurate representations cannot be overstated. This is because any subsequent challenge by way of judicial review will be largely confined to the evidence advanced at this stage. Because of this bringing counsel on board sooner rather than later is a wise move, even though the case might not proceed to the litigation stage.

Judicial Review

Once faced with a decision to revoke a licence, sponsors will have to resort to judicial review.

JRs are heralded by Pre-Action Protocol letters. If skilfully drafted with appropriate supporting evidence, these can result in the action being settled and the decision reversed. In fact, most successes in these cases are at either the representations stage, or because of a strong PAP – litigation itself has a rather low success rate.

The strongest arguments in a PAP are likely to involve:

• Procedural unfairness - for example, failing to interview sponsored migrants or their managers, or not asking them the right questions before coming to conclusions on the nature of their work, and failing to provide a sufficient opportunity to respond to a particular issue (due to a lack of clarity in the suspension letter).
• Factual Errors – for example, overlooking aspects of a Certificate of Sponsorship (CoS) or the terms of a particular Standard Occupation Classification (SOC) code – however, any such factual error must be shown to have a significant impact on the overall decision.
• Failure to consider relevant considerations: for example, not demonstrably engaging with the impact of a decision on a large cohort of migrant workers in the care industry and their families, and on the vulnerable individuals for whom they cared.
• Misconstruing Guidance: that UKVI misconstrued its own guidance, where that guidance is open to more than one interpretation.

Interim Relief

Losing their licence may threaten the sponsor's business model: they may be mainly dependent on migrant labour and their sponsored workers may move elsewhere if they learn that the licence on which their livelihood depends has been suspended.

A strong JR application can include an application for interim relief (to suspend a revocation decision). The grant of interim relief may maintain the status quo, so that migrant workers can stay in post pending the JR being determined. 

Such an application will need to be supported by detailed evidence demonstrating that the claim raises a serious issue and that the balance of convenience favours the sponsor: i.e. that it is more of a disaster for the sponsor to lose its licence during the JR process than it is for the Home Office (and the British public) to face an arguable threat to immigration control by having a sponsor employing migrant workers whose compliance with sponsor duties is debated. These applications can be fiercely defended by UKVI, so they do require careful planning and presentation.

Conclusion

In summary, when faced with compliance action, there is every reason to bring counsel on board early to put your best foot forward at every stage of the process. Proactive early engagement with a threat and strategic planning can bring results, despite the failure of most reported cases.

[1] 241 Tier 2 sponsor licences were suspended, the highest quarterly figure since 2017 - https://www.gov.uk/government/publications/sponsorship-transparency-data-q4-2023