Immigration considerations – sponsored workers and remote working

The employment landscape is changing. The current skills gap means that there is an ongoing challenge for employers to find the skills they need from within the UK. As a result, there are an increasing number of employers that are considering applying for a sponsor licence to enable them to recruit talent from overseas. In addition, since the pandemic, there has been a significant increase in demand for remote/ hybrid roles and therefore when it comes to recruitment, offering home working is becoming a key factor in attracting talent.

However, this new working landscape does not always sit comfortably with the requirements of the Home Office. The way in which the sponsor licence system is set up does not lend itself to a fully remote workforce, and the Home Office guidance in this area has taken some time to catch up with the changing demands in the workplace.

The Home Office guidance, Workers and Temporary Workers – Guidance for Sponsors Part 1: Apply for a Licence (the guidance), has now been updated to confirm what is expected of sponsors and sponsored workers where the business and/or role operate via a virtual business model i.e. with little or no physical presence required at office premises.

There are, however, still a number of issues to consider when applying for a sponsor licence or when looking to sponsor a worker in circumstances where either the business, or the prospective skilled worker, operate from a home address.

If the business operates remotely

When applying for a sponsor licence, an employer must provide a physical address for the company. This is to confirm that the business is a genuine business operating in the UK and also to enable an in-person compliance visit to take place as and when required.

If the business does not have a permanent office space and all current employees work from home offices or shared working spaces, the Home Office will need to be satisfied that it  is a genuine business with a trading presence in the UK. Whilst an established remote business may well be able to satisfy the Home Office of its trading presence, it will need to explain, as part of its application, how it will meet its sponsor obligations when all or most of its employees work remotely. For example, sponsors have reporting obligations whereby they are required to report to the Home Office, certain changes in their sponsored workers circumstances. The Home Office will therefore need to be satisfied that the sponsor has the HR processes in place to enable it to keep track of any such changes and to keep track of its sponsored workers during the working day.

Furthermore, the guidance confirms that where there is a virtual business model it is highly likely that the Home Office will conduct a compliance check with the Authorising Officer, which may include a compliance visit, before making a decision on the application for a licence. The Authorising Officer should therefore be aware that if a compliance check is required by the Home Office, the address that they will visit may well be the Authorising Officer’s home address. Therefore the Authorising Officer will need to be well versed on the company’s compliance obligations and have access to all documents relevant to the company’s licence and the HR systems, to show how the business will maintain its compliance obligations. In the event that the compliance visit takes place once the application has been approved and the organisation has sponsored workers, the Home Office may also visit the home address of the sponsored worker to undertake a compliance visit.

If you are sponsoring, or intend to sponsor, remote workers

If a company intends to sponsor skilled workers to fill a role which is either temporarily or permanently remote or hybrid, there are several other important issues to consider.

The guidance confirms that where there is a virtual business model, the Home Office will need to consider the type of work a sponsored worker will be doing and where the worker will be carrying out their employment duties, as part of its assessment about the eligibility for the role. In order to be eligible for sponsorship, the organisation needs to show that it has a genuine vacancy that meets the skills and salary threshold for eligibility. The Home Office will therefore need to be satisfied that there is a genuine need for this role in the UK, which may, in some circumstances, be difficult to prove if the role can be completed on a fully remote basis. The Home Office guidance also provides that it may need to conduct a compliance check and/ or see contracts between the business and any third party to satisfy itself in this regard and so sponsors should therefore consider how it will show that there is a genuine need for the role to be undertaken in the UK and that the relevant documentation is consistent with this.

One of the key issues to consider when becoming a licensed sponsor is the obligations that the licence holder agrees to comply with in respect of compliance. When an organisation applies for a sponsor licence, it acknowledges that in exchange for the privilege of employing overseas workers, it will take on a position of significant trust and responsibility. To fulfil the requirements of this position, sponsors have to comply with certain compliance obligations – reporting and record keeping duties for example. Failure to comply with sponsor duties can result in a reduction of COS allocation, licence suspension, or even licence revocation.

There are a number of key duties of which it is important that sponsors of remote workers are aware:

1. Reporting duties

• If the location of the sponsored worker changes at any time during their employment, whether to a fully remote or hybrid working arrangement, this change must be reported to the Home Office using the Sponsor Management System (SMS) within ten working days of the change. When submitting this report, the sponsor must provide the sponsored worker’s current residential address and contact number and if the employer has a personal email address for the employee this must also be given
• If the remote work involves flexible hours at different locations, the sponsor should update the SMS with the average number of hours the sponsored worker is working in each location, providing as much relevant information as they can about the arrangement
• The sponsor will also need to ensure they can monitor the worker’s attendance and that they maintain sufficient control over the employee’s work, even when they are working from home. They are responsible for reporting any unauthorised absences or problems with the employee’s work/ immigration status to the Home Office promptly. As mentioned above, if a compliance visit is undertaken, the business will need to satisfy the compliance officer that it has systems in place to enable it to monitor its sponsored employees when working from home.

2. Record keeping duties

Licenced sponsors have a duty to keep and regularly update specific documents for each worker sponsored. Appendix D of the sponsor guidance sets out the required documents and the length of time they must be maintained for.

The documents include:

• A history of the worker’s contact details, listing any residential addresses, contact numbers and email addresses the employee has provided, including their most up-to-date details
• A record of the worker’s attendance and absences, which is clearly linked to the reporting duties
• The worker’s contract, which must set out the hours and location of their sponsored job role
• If there are any changes to the employee’s work location or schedule, their employee record and any other relevant HR systems must be updated with these changes.

Organisations where remote working is commonplace will therefore need to ensure that they are still able to keep track of these matters and keep on top of the documentation in respect of sponsored workers terms and conditions, so that they don’t fall foul of the Home Office rules.

To summarise

The updates from the Home Office to reflect modern working practices, that being that many businesses now work entirely remotely or at least on a hybrid remote working basis, are welcome if not overdue. It is important to note however, that sponsors that employ remote-workers, will have to ensure that they are able to keep up with the Home Office requirements in this regard and that they have robust processes in place to ensure that details are kept up to date, so that sponsored workers are monitored. As compliance audits become a more regular feature of the Home Office checks post-pandemic, it has never been more important to ensure that your processes, systems and documentation are all up to date, whether you are already a licensed sponsor, or are applying to become one.