How to avoid common mistakes made by charities that are sponsors

The overriding principle of the UK’s sponsor licensing regime is that the ability for an employer to sponsor employees is a privilege and not a right. A sponsor must comply with ongoing sponsorship duties, including record keeping and reporting duties, as well as complying with wider UK and immigration law, in order to maintain their licence. Failure to put HR systems in place to manage these compliance responsibilities can lead to sponsor licences being downgraded, suspended, or even revoked. The case of Prestwick – a care home operator that had its sponsor licence removed for an aggregated number of failings – shows how seriously the Home Office takes sponsor compliance.

As the Sponsor Management System (SMS) allows employers to effectively authorise work in the UK by assigning Certificates of Sponsorship, it is deemed essential that access be limited to key personnel.  Sponsors must report certain changes to their organisation or worker circumstances to the Home Office, including to the key personnel who operate their SMS account. Key personnel include the authorising officer (AO), key contact (KC) and level 1 user (L1U).

Problems may occur where an individual who is listed as key personnel changes role or leaves an organisation, and the sponsor does not consider the impact on their licence. For example, if the individual was the only listed L1U, a sponsor will no longer be able to access the SMS. A sponsor is considered to be in breach of its duties if it cannot access the SMS at all times in order to report on sponsored migrants. It is essential that key personnel are kept up to date and any changes are promptly reported on a sponsor’s SMS. 

Where there is a change in role for any key personnel within the organisation, sponsors should consider the impact on their licence and whether access is held at an appropriate level. Sponsors should also consider adding more than one L1U to ensure the SMS can be accessed during holidays or periods of sickness. 

A sponsorship licence is not a transferrable asset, as the Home Office want to ensure that they are aware of and authorise anyone with access to assign Certificates of Sponsorship. When a significant change to the organisation occurs, such as a transfer of legal status from a trust to a charitable incorporated organisation (CIO), in most cases a sponsor must notify the Home Office and apply for a new sponsorship licence within 20 working days of the transfer. Failure to do so may result in penalisation from the Home Office and could potentially impact their licence as well as any sponsored workers. 

Therefore, whenever  an organisation is undergoing significant structural changes or there is a direct change in ownership, it is essential it considers the implications of such a change on the licence. If an organisation is unsure of how any structural changes may impact their licence, they should seek legal advice. 

There are a variety of immigration routes to come to the UK, each with a specific purpose and different legal requirements, which may be used by charities. Routes that charities might utilise include charity worker, minister of religion, religious worker, skilled worker or visitor. If the individual applying for the visa does not meet the requirements of the route, or if the Home Office considers that the route is not the most appropriate route in the circumstances, there is a significant risk that the application will be refused. 

We often see further issues for charities that are faith based. Due to the specialist nature of certain positions – for example for roles under the minister of religion or religious worker routes – if sufficient explanation about the role is not provided with the application, the visa may be refused. A refusal can result in a loss of valuable time and resources for the charity, potentially impact their sponsor licence, and have implications on future visa applications for the individual. 

When considering bringing overseas nationals to the UK, sponsors should therefore think about the main purpose of the individual’s travel to the UK and whether they meet the requirements of the route before pursuing an application. If it is a faith-based role, sufficient explanation of the context of the role should also be provided as part of the application, to ensure that the Home Office understand the specialist nature of the position. If there is any doubt as to the most appropriate route for an individual they wish to bring to the UK, an organisation should seek legal advice.

Employers have a legal duty to prevent illegal working. Right-to-work checks are therefore important to ensure that an employer has a statutory excuse against unlawful employment. Checks should be conducted for all employees and potential employees, irrespective of nationality. This therefore includes British nationals as well as overseas nationals. 

There are different methods of undertaking a right-to-work check. Checks can be conducted manually or online and the type of check undertaken depends on what immigration status the individual has. Organisations should be aware that they can no longer accept a physical biometric residence permit (BRP) as proof of an individual’s right to work in the UK. This is due to the Home Office’s move towards digitalisation. Employers should instead be conducting an online right-to-work check for BRP card holders. Furthermore, where an individual has time-limited permission in the UK, it is important that charities diarise expiry dates of visas and ensure follow-up checks are conducted.

Where an organisation fails to comply with their duty to prevent illegal working, they may receive a civil fine of up to £60,000 per person who is working illegally. (Read more about the recent increase in right-to-work penalties.) It may also result in sanctions against a sponsor’s licence, depending on the severity of the issue and whether the Home Office considers them a risk to immigration control.

Organisations should therefore be conducting right-to-work checks on all employees, and doing so in accordance with the most recent Home Office guidance to ensure they have established a valid statutory excuse against unlawful employment.

Whilst volunteering is possible on many visas, there are often restrictions in place such as on the amount of volunteering permitted. For example, an individual on a Student Visa is ordinarily only able to undertake up to 20 hours of work per week during term-time, whether paid or unpaid. Where charities take on volunteers, they should consider the type of visa an individual is on to ensure the individual is not in breach of their immigration leave by volunteering for the organisation. 

As visitors to the UK do not need sponsorship or need to meet an English language requirement, the visitor route is often used by Charities. As visitors to the UK may volunteer for a registered UK charity for up to a maximum of 30 days, this is a suitable route to facilitate short-term volunteer placements. However, while non-visa nationals may be allowed to enter the UK as a visitor for up to six months on arrival, visa nationals must apply for a visitor visa prior to travelling to the UK. Charities should closely manage the volunteering arrangements to ensure they are classed as a permitted activity and do not breach the prohibition on working in the UK as a visitor.   

Charities should also consider whether to undertake right-to-work checks on volunteers. As there is no employer / employee relationship with a volunteer, it is not a legal requirement to establish a statutory excuse against unlawful employment. However, organisations should consider the potential implications, including reputational damage and any impact on their sponsor licence, of taking on volunteers who do not have the right to work in the UK. It is also important to note that there are additional obligations for charitable organisations that operate in the education sector under Keeping Children Safe in Education. 

Our team supports charities with all aspects of sponsor licencing and immigration compliance. We are able to assist with any of the above issues through ad hoc support or one-off consultations, as well as acting as a L1U on your licence and providing bespoke training or undertaking a mock audit. Please do therefore get in touch if have any questions or concerns.