We act for many charitable organisations on immigration and regularly assist with navigating the law and finding solutions to problems in this area. Our Head of Immigration, Julie Moktadir, explores some of these issues below and offers practical actions that charities can be taking now, to avoid falling foul of immigration law and guidance.
- Key personnel not up to date
The law: Key personnel are the individuals listed on your sponsorship licence. These include, the authorising officer, who has overall responsibility for the licence, the Level 1 User who is responsible for day to day tasks and the Key contact, who the Home Office will correspond with. Only a listed Level 1 User is allowed to access the licence and all key personnel must remain active at all times.
The issue: Many organisations tend to only have one Level 1 User, meaning only this individual can access the licence to assign CoS, report to the Home Office or add further key personnel. When this individual is on holiday, off sick or in worse case scenarios, has left the organisation, this poses huge issues and may mean that the organisation cannot comply with their sponsorship duties or sponsor new individuals.
Solution: We urge charities to always have at least two Level 1 Users, to avoid difficulties in accessing the licence, which can have severe consequences for the organisation. It is also essential that any key personnel that subsequently leave the organisation are replaced before the end of their employment.
- Right to work checks completed incorrectly
The law: As employers, irrespective of the size of your charity or the sector in which you operate, you are required by statute to take steps to ensure that your workers have the right to work in the UK in order to comply with your legal duty to prevent illegal working. Right to work checks must be carried out either manually or online for all employees, irrespective of their nationality.
The issue: For any employee with time limited leave, Charites must diarise the expiry date of their visa and thereafter conduct a follow up check once their visa has been renewed. Failure to do so may mean you no longer hold a statutory excuse against illegal working which could be discovered by the Home Office during a spontaneous compliance audit.
Solution: We urge charities to keep a central database recording their right to work checks and key dates including, expiry dates. Charities should thereafter check in with the worker one month before their visa expires to ensure they have this in hand, obtain evidence that a new application has been submitted and thereafter carry out a follow up right to work check once granted.
- Structural changes
The law: When charities change their structure for instance from a Trust to a CIO, it is essential they consider the impact of their sponsorship licence. In most cases, as a sponsorship licence is non-transferable, a new licence must be obtained for the new entity within 20 working days of the date of the transfer. Any sponsored workers must thereafter be transferred onto the new licence and the old licence should be made dormant.
The issue: Many charities undergoing significant structural changes remain unaware of the potential need to acquire a new sponsorship licence. Not only is not doing so a potential breach of immigration law, but this can have detrimental consequences for any sponsored workers whose leave in the UK will then be impacted.
Solution: We urge charities to consider the impact on their licence prior to any structural change and seek legal advice on whether a new application will be required, to protect their organisation and workers.
- Lack of strategic Brexit planning
The law: From 1 January 2021, EU nationals arriving in the UK to work will require sponsorship to do so under the UK’s new immigration system.
The issue: Many charities rely on the free movement of people with the EU and will therefore be impacted by Brexit, especially those in which there is a shortage of workers in the UK, such as Religious Orders. It is important to be thinking ahead and engaging in strategic workforce planning as soon as possible to ensure you are prepared and to avoid workplace shortages.
Solution: Charities that already hold a sponsorship licence are already in a good position however, we would urge those who may experience a shortage of workers as a result of Brexit, to increase their CoS allocations for next year and to add additional tiers onto their licence to ensure they can sponsor overseas workers if they need to.
Stone King’s Immigration Team are experienced in all aspects of Immigration law, especially in the charity sector. We are able to advise on specific immigration queries, deliver training, conduct audits of your organisation, act as a Level 1 User of your sponsorship licence and help with overseas recruitment including, completing the whole sponsorship process on your behalf.
If you would like further information, please contact JulieMoktadir@StoneKing.co.uk