Three key implications of remote working for sponsors of migrant workers
The world of work is changing at an unprecedented pace. The coronavirus (COVID-19) pandemic forced most office-based organisations to move to remote working, and this proved to be a success for many. Consequently, many organisations are considering reducing office space or moving to entirely remote operations. We discuss the key UK immigration considerations of remote working for sponsor licence holders, working through specific case studies.
UK Visas and Immigration permits sponsors to operate an entirely remote business or limited business space, with sponsored migrants being able to work from home or another remote location, even outside the circumstances of the pandemic. In the Home Office guidance Workers and temporary workers: guidance for sponsors this is referred to as a "virtual business model". So far, so good. However, it may be more difficult to justify the need to employ a migrant in the UK if they are performing their job remotely. Below we explore the following important implications through four case studies around the hybrid and virtual business models. A hybrid working pattern is where an employee splits their working time between their home (or another remote location) and the employer's workplace.
Sponsor licence compliance duties
UK Visas and Immigration expects sponsors to have the necessary systems and procedures in place to adhere to their compliance duties. However, where migrants are working remotely, the risk of non-compliance with sponsor duties is heightened. These duties include monitoring and tracking sponsored migrants, retaining records, reporting changes relating to migrants against their certificate of sponsorship, providing evidence of a genuine vacancy for sponsored migrants and reporting certain changes to the sponsor licence holding organisation, such as a corporate restructure or acquisition, or a change of main business address or organisation size. (See How to retain a sponsor licence for further practical guidance.)
UK Visas and Immigration compliance audits
Where the organisation is applying for a new sponsor licence, as many are doing post-Brexit, UK Visas and Immigration will almost certainly conduct a compliance audit as part of the sponsor licence application (see How to apply for a sponsor licence for more guidance on applying for a sponsor licence).
Once a licence has been granted, a compliance audit is also possible at any time during the lifetime of the licence, but there are certain triggers that increase the risk of an audit, including where the sponsor moves to an entirely remote model. UK Visas and Immigration is also likely to apply greater scrutiny when assessing compliance of sponsors deemed to be operating a virtual business model.
It is therefore imperative that existing and prospective sponsor licence holders are familiar with the compliance duties that may be affected by a remote or hybrid working model.
Right to work checks
All employers are obliged to adhere to the rules on preventing illegal working. Employers that do not have a physical workspace should consider how they will conduct compliant right to work checks, as in some instances, such as for British nationals, a manual check of original documents is required (this is currently subject to a concession due to the coronavirus pandemic - see more below).
The hybrid working model
The beauty of a hybrid model is the flexibility it can offer, with multiple structures and arrangements possible to suit the organisation's and employees' needs. Below we set out two case studies exploring common queries raised by sponsors, and work through the compliance duties engaged.
Case study 1: Since the coronavirus pandemic began, more of our employees have been working flexibly. From 1 October, which is when we plan to reopen the office, all employees will have the option to work from home for up to three days per week.
Case study 2: Our employees have been working from home throughout the pandemic and that model has worked well. We plan to downsize to a smaller office and have employees work from home full time, unless they want or need to come to the office.
The following sponsor duties and considerations are engaged in these case study scenarios:
Genuine vacancy requirement
UK Visas and Immigration will expect you to justify why you need a sponsored migrant in the UK when they can do their job remotely. This relates to the genuine vacancy requirement for all sponsored roles. The precise justification will depend on the business and the role, and may include documentary evidence in line with Appendix D, the guidance that sets out the documents that you must keep in relation to sponsored migrants.
Reporting a change of work address for sponsored migrants
One of the concessions the Government introduced to help employers during the COVID-19 pandemic relates to where a sponsored migrant works from home because of the pandemic. This change does not need to be reported against the migrant's certificate of sponsorship.
If the homeworking is for any other reason, such as a change of business strategy or policy, even where this is influenced by the pandemic, it must be reported as a change of, or additional, work address against the migrant's certificate of sponsorship. Ordinarily, this would be reported within 10 working days of the change, but due to a COVID-19 concession, employers can make the report when the concession ends. If you decide to wait, take care to ensure you make the report as required when the time comes.
Maintaining migrant contact details
Sponsors have a duty to maintain a complete record of current and historical personal contact details for sponsored migrants. Where migrants are working from home, the need for these records to be up to date is heightened, as any change in home address may also mean a change of work address on their certificate of sponsorship, as above.
Where migrants are working from home, UK Visas and Immigration will expect the sponsor's tracking and monitoring processes to be robust and will attach heightened scrutiny to this in any compliance audit. Sponsors must demonstrate that they know when their migrants are working and that migrants are performing their duties according to the assigned certificate of sponsorship, and ensure they maintain records of any absences from work.
Reporting salary reductions
Although this is not common, if the organisation agrees a reduction in a sponsored employee's salary because of homeworking, it needs to report this against the migrant's certificate of sponsorship in accordance with its duty to report a reduction in sponsored migrants' salaries. If these circumstances arise in your organisation, take care to ensure that any reduction in salary does not fall below the required thresholds for the migrant's sponsorship category and standard occupational classification code.
Practical considerations for the hybrid model
The following practical guidance may help you adhere to your sponsor duties:
- Why a migrant needs to be in the UK if their job can be done remotely is often a nuanced question to answer. What an appropriate justification may be will depend on what the migrant's role is and the nature of the business. Sponsors should be ready with this justification in an audit scenario, including with documentary evidence where appropriate.
- Where employees are given flexible options regarding work from home, without a pre-defined working pattern, this may mean in practice that some migrants choose not to work from home. For these individuals, a report on their certificate of sponsorship may not be necessary. However, you may wish to err on the side of caution and report home addresses as a work location for all migrants to allow maximum flexibility and maintain compliance regardless of the migrant's choice. The downside to this is the high number of reports that bigger sponsors will need to make, and the ongoing duty to keep the homeworking address up to date on the certificate of sponsorship.
- To avoid a last-minute rush to meet the 10-working day deadline for reporting changes affecting the certificate of sponsorship, early reporting is permitted and could be wise. You could report either before the Government's COVID-19 concessions end or before the change of work address commences.
- Sponsored employees should be aware of the significance of their home address and the importance of that information staying up to date. What communication will you have with them to explain this? You might decide to send an email to each sponsored migrant confirming that an update has been made against their certificate of sponsorship, explaining your ongoing duty to report changes of work location and emphasising the importance of the employee keeping their internal records up to date.
- Review the systems you have in place to capture and monitor home addresses. Are these robust enough going forward or will you need to adapt them? For example, if your current practice is to ask employees to review their profile on the HR information system once per year, should you do this more often? Make sure that someone is responsible for ongoing monitoring of home addresses and ensuring that notifications are made on the sponsor management system.
- Make sure that existing internal processes and management lines are effective in monitoring sponsored migrants' daily activities during working hours when they are working remotely, and that absences records can be maintained adequately.
- An employer may agree a salary reduction with all its employees, but a reduction might not be possible for sponsored migrants because of the requirement to meet salary thresholds. If this applies to your organisation you should consider how to handle any related conflicts and remain compliant with sponsorship duties and discrimination law.
Virtual business models
For many organisations, remote working has been so effective that they no longer need to keep a fixed office or operations site, either for a temporary period or permanently. Below we work through two common situations and explore the duties that sponsors need to bear in mind.
Case study 3: We have permanently closed all our UK offices. We use our registered address for correspondence and all employees work from home.
Case study 4: We closed our only office during lockdown and plan to move into another office when it is financially viable to do so.
Having an entirely remote business model is permissible, but various sponsor holder duties are engaged:
Updating the main address on the sponsor licene
Changing to a virtual business model means that the main address on the sponsor licence needs to be updated. This is required within 20 working days of the change. In this scenario, the main address needs to be the authorising officer's home address, for which evidence of ownership or tenancy may be required.
If the organisation moves into new premises later, the main address should be changed again to reflect the new address. If it remains a virtual model, a future change of authorising officer will also mean a change to the main address on the licence.
Updating key personnel work addresses
The sponsor needs to ensure that the authorising officer's and key contact's work addresses are changed to the new main address on the sponsorship management system, ie the authorising officer's home address, as appropriate. This must be completed within 20 working days of the change on each occasion the address changes.
Removal of other sites from the licence
If there are no longer any UK sites of operation for the organisation, any sites previously added to the licence must be removed within 20 working days. No evidence is required to remove sites from the licence.
Triggering a compliance audit
Changing the main address on the sponsor licence to the authorising officer's home address may trigger a compliance audit. UK Visas and Immigration may announce their visit in advance or arrive without prior notice. It is essential that the authorising officer is audit ready and has access to all relevant organisation records to present to the UK Visas and Immigration compliance officer. See our Skilled worker sponsor compliance and audit preparation checklist for more information.
Right to work checks in a remote business
With a completely remote business, one of the main risk areas is non-compliant right to work checks. Despite the increasing use of the Home Office online right to work service, many employees will not be eligible for this service. For these employees, it may be necessary for you to carry out an in-person check of original documents to establish a statutory excuse against illegal working. This means arranging to meet the employee somewhere you can copy the documents and conduct the check (or, while you are permitted to do so under the COVID-19 concession, asking the employee to send their documents to you and arranging a video call to complete the check once you have the documents in hand).
Practical considerations for the virtual model
The following practical guidance may help you adhere to your sponsor duties:
- Your authorising officer will need to be comfortable having their home address listed as the organisation's address on the sponsor licence. They must understand the implications of this and have access to employee files from that address.
- Remember that each time you update your business address, an update may be required in relation to each sponsored migrant's certificate of sponsorship and the licence.
- Be aware that a move to complete remote working carries with it a heightened risk of being audited by UK Visas and Immigration. Think about how prepared you are for an audit. Are your HR team, recruiters, managers and authorising officer familiar with your sponsor obligations, including the records required under Appendix D, reporting duties and right to work check requirements? Consider arranging refresher training or a mock audit to ensure that you are audit ready.
- Ensure that you have a system in place for conducting compliant right to work checks. Where you need to perform an in-person check and/or check original documents, how will you do this? Who will conduct the check, when and where will they meet the new employee and how will they take copies for record-keeping purposes?