There has always been risky sectors for immigration compliance purposes, including hospitality and information and communications technology, but more recently charitable organisations have come under the Home Office’s scrutiny.
In the words of the Home Office, significant trust is placed on organisations which hold sponsor licences and a failure to adhere to sponsor responsibilities can lead to action being taken against organisations. In some cases this can lead to organisations no longer being able to sponsor non-EEA volunteers and having to dismiss staff as recruitment plans cannot go ahead due to sponsor licences being suspended or eventually revoked.
We have advised a number of charitable organisations which have been the subject of Home Office compliance visits and this article explores some of the so called ‘issues’ that have been picked up by the Home Office (whether correctly or incorrectly) across the third sector.
The Home Office and decision making centres overseas have analysed the job descriptions on assigned Certificates of Sponsorship (CoS) to assess whether in their view work placements directly assist with the aims of the charities and if permanent roles are being filled. Whilst there is no requirement for sponsors to provide their mission statement on CoS; it is recommended that charitable organisations provide details of their purpose and how the roles are contributing to the advancement of their purpose.
It is a known fact that pocket money is standard wording in the sector but this has been queried by the Home Office. Section 44 of the 1998 National Minimum Wage permits subsistence payments to volunteers but there is ambiguity around what constitutes ‘subsistence’. The Home Office expects to see a list of expenses likely to be incurred, including a breakdown of the figures. In an ideal world, the preference would be for receipts to be retained but for many charitable organisations this would be an administrative burden to monitor.
The Home Office has received intelligence from its overseas enforcement counterparts which led to a number of compliance visits being undertaken in the UK. In some cases, the issue was flagged because of a concern that sponsored non-EEA migrants had not left the UK.
The Home Office guidance states that a report must be made within 10 working days if a sponsored migrant does not turn up for work on their first day and the example given is a missed flight. A number of sponsors have been caught out and have breached sponsor duties as they had not realised that they also need to make a report to the Home Office if a sponsored migrant does not arrive at work because their visa has been refused.
Sponsors are expected to retain DBS checks for those undertaking a regulated activity for children and the Home Office guidance states that if a check is required, the sponsor must ensure that it is carried out.
The first step is for sponsors to assess whether or not a DBS check is required and if it is, checks should be undertaken. Some hurdles that organisations come across is that a UK residential address is required for a DBS check to be conducted and this means that in some cases, it will not be possible to obtain a DBS check until an individual has travelled to the UK. Secondly, where charitable organisations place non-EEA volunteers with placement organisations, the placement organisations had in the past assessed and arranged for DBS checks to be conducted. The Home Office expect sponsors to have control and oversight of DBS checks as they are responsible for individuals from the day they assign CoS. Sponsors should have safeguarding policies in place.
It is important that charitable organisations which are sponsors revisit their current practices to avoid any unpleasant surprises.
Chetal Patel, partner, Bates Wells