PBS - Enforcing Penalties

Sponsors, whether employers, 

colleges

, religious bodies or otherwise, will be responsible for evaluating the suitability of UK visa candidates before issuing a 

certificate

 of sponsorship, and beyond this they will be obliged to monitor their conduct whilst in the UK.

Sponsors must keep records pertaining to each candidate they sponsor and maintain details of organisational procedures.

Any details relating to the sponsorship of non-EEA nationals must be made available to the Home Office Border and Immigration Agency (BIA) upon request.

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Enforcing sponsor duties

Under the Points Based System, sponsors will be graded as either A or B depending on the BIA's risk assessment of each individual organisation. Whilst in most cases organisations will be given an A rating, this may be removed or downgraded in some circumstances. Where a sponsor is downgraded to a B rating this will appear on the public register of licensed sponsors. B rated sponsors will face closer scrutiny by the BIA and will face extra requirements when sponsoring some categories of migrant.

Circumstances in which a licence may be withdrawn

A licence may be revoked if the organisation ceases to trade or operate.

In addition, in cases where accreditation with a specific body is a prerequisite for a licence under PBS, the loss of such an accreditation would lead to the licence being revoked.

Licences will also be revoked where an organisation is convicted of illegally employing non-EEA nationals or another offence which relates to breaking UK immigration law.

A licence may be revoked as a result of dishonest dealings with the BIA, making false statements, failure to disclose information or failure to comply with any other obligations set out under the PBS.

If BIA immigration compliance officers find that the required procedures under sponsorship are not in place, a licence may be revoked.

In addition, it is a sponsor's obligation to report failure to arrive, or prolonged absence of any non-EEA national under their sponsorship. If a sponsor does not report this as set out by the guidelines, a licence may be revoked.

In cases where the BIA suspects a serious breach, it may suspend the sponsor whilst the breach is investigated. In these circumstances a sponsor will not be able to engage in applying for or awarding certificates.

Circumstances in which a sponsor may be downgraded

A licence may be downgraded to a B rating in circumstances where a sponsor has a conviction relating to a serious offence in the conduct of business.

Where this calls into question their suitability as a sponsor, they may be downgraded. In such circumstance, cases will be assessed on an individual basis, taking into account the seriousness of the offence and the sentence imposed.

Downgrading procedure

When a licence is downgraded, the sponsor is notified in writing and has a period of 28 days in which to forward any written representations. After this period, the BIA will notify the sponsor of the action it will be taking.

How are migrants affected by the withdrawal of a sponsor's licence?

When a licence is revoked, a sponsor will not be able to bring non-EEA nationals into the UK. However, those already sponsored by them and in possession of UK visas will have their leave to remain in the UK curtailed to 28 or 60 days depending upon whether or not an individual migrant was complicit in any breach of sponsor obligations.

In cases of a 28-day period, migrants will be obliged to leave the country.

Where 60-day reprieves are given, migrants will be allowed to look for a new sponsor.

If they cannot secure one within 60 days they will have to leave the country.

Sponsorship action plans

'B' ratings are intended as a temporary measure, and where a sponsor is downgraded they will need to follow a Sponsorship Action Plan to regain (or move up to) an A rating.

If a sponsor does not attain the 'A' rating, it may have its licence withdrawn altogether.

Sponsorship Action Plans are drawn up between the BIA and the sponsor however, they are mandatory and failure to comply may lead to a sponsor's licence being revoked.

Actions plans are generally designed for a three-month period, after which the sponsor's rating will be reassessed.

Penalties

A range of penalties may be imposed upon sponsors who fail to meet their obligations. The type of penalty will depend on the seriousness of the breach and may range from being downgraded to a 'B' rating and a mandatory action plan or complete withdrawal of a licence as described above, to fines or imprisonment as set out below.

• A civil penalty may be imposed if illegal migrants are being employed as a result of negligence. Heavier penalties will be imposed for repeat offenders based on a sliding scale.
• A prison sentence of up to two years, and/or an unlimited fine may be imposed for the procurement or use of fraudulent identity documents.
• Where illegal migrant workers are knowingly employed, a prison sentence of up to two years and/or an unlimited fine may be imposed. The sponsor may also be disqualified from being a company director/officer, and could be barred from forming or managing a company.

Biometric immigration documents - ID Cards

As from the introduction of the UK Borders Act 2007 non-EEA nationals who are in the UK for more than six months will need to apply for a biometric identity card.

ID cards will confirm a candidate's immigration status and their entitlement to live and work or study in the UK.

ID cards replace the previous EEA resident permit scheme and other UK immigration documents and seek to remove the opportunities for fraud and illegal working.

A civil or criminal penalty may be issued to a sponsor found employing non-EEA nationals without the appropriate documentation. In addition the sponsor will also be downgraded or have their licence revoked.