Date updated: Tuesday 30th January 2024
Care providers should note increased Home Office right-to-work and immigration enforcement action within the sector. The recent case of Prestwick Care Ltd shows that revocation of a sponsor licence is a real possibility where HR processes are non-compliant. Where your homes are reliant on Health and Care visa workers, audit and training are essential to protect your operating model from this business-critical risk.
What happened to Prestwick Care Ltd?
Large care home operator Prestwick Care Ltd sponsored 219 Health and Care workers across several homes in the North-East. When the Home Office conducted a sponsor compliance visit in October 2022, they highlighted several instances of failure to comply with sponsor record keeping and reporting duties, constituting a lack of employer oversight. The sponsor licence was therefore revoked, with significant financial consequences for the business, its employees, its vulnerable residents and the availability of care generally. The High Court has upheld the Home Office's decision to remove their ability to sponsor Health and Care workers, despite the commercial impact on the business and the effect the revocation had on the delivery of health and care services to the wider community, as well as individual workers who had moved to the UK to fill shortage roles.
Why does this matter to other Care providers?
Employers in the Care sector face chronic recruitment problems, for which sponsorship of overseas Health and Care workers is often the only immediate solution. What happened with Prestwick Care is a stark reminder to other operators to prioritise training on the effective management and use of their licence and responsibility for any sponsored workers. The case highlights that multiple “minor” breaches undermine the trust placed in an employer under the sponsorship system, and how readily Care Providers may adopt non-compliant behaviours and thereby put their licence at risk.
Staff using any sponsor licence should be fully trained and aware that:
A Certificate of Sponsorship (CoS) can only be assigned for a “genuine vacancy” and sponsored workers must genuinely be performing the tasks described. It is essential that job descriptions are checked and considered carefully in each instance of sponsorship. Prestwick Senior Care Assistants were performing duties that were not in line with their Certificate of Sponsorship, which was considered grounds for revocation.
Sponsored workers must be paid in line with the salary stated on the CoS. Prestwick were penalised where a nurse was paid a reduced salary while training and without notification. The gross salary stated on the CoS must actually be paid to the worker – allowances cannot be relied on.
Sponsored workers benefit from all UK employment laws, including sick pay and National Minimum Wage regulation, on the same terms as in line with resident workers.
The immigration skills charge must not be passed on to or recouped from sponsored workers – this is grounds for licence revocation. The only costs you can recoup are the visa application fee and the immigration health surcharge, if you choose to fund that upfront – any deductions should not come from gross salary though as they would be different to that stated on the CoS.
Right-to-work checks must be carried out prior to the start of employment and visa expiry dates recorded and diarised effectively. The Home Office would want to audit RTW records carefully. Prestwick was penalised, despite visas being in place, simply because they had not recorded the expiry dates effectively for eight of their sponsored workers.
Employers must hold an accurate record of each sponsored worker’s contact details and address history. An inspection of Prestwick’s records found they held incorrect addresses for seven sponsored workers (and were therefore not able to track workers as required).
What is the level of risk for Care providers?
The Home Office are committed to a right-to-work enforcement drive in 2024, which will impact all employers. Extensive reforms to employer-sponsored visas, including an increase in the salary levels from April 2024, show the government’s tough approach to immigration compliance and commitment to drive down overall visa numbers. Care is a particularly vulnerable sector as it sponsors the majority of all overseas workers in the UK. While Health and Care visas will not need to meet the general salary threshold, care providers should expect to be subject to greater scrutiny with a higher risk of both fines and licence suspensions and revocations.
How can Care providers manage risk?
We highly recommend undertaking an audit to alert you to any potential compliance issues and help you take steps to correct them.
We recommend that policies and contracts are reviewed and maintained to reflect current employment law and sponsor compliance duties, and that all staff administering any licence receive full training.
We recommend our Level 1 user service to review the basis for sponsorship ahead of any assignment and visa application.
Please contact our Immigration Team for cost information.