The case of Prestwick Care Ltd & Ors v Secretary of State for the Home Department 2023 serves as a reminder to employers of the compliance conditions they need to meet if they sponsor an overseas employee.
Prestwick Care Ltd & Ors v Secretary of State for the Home Department 2023
In this case, the High Court upheld the decision of the Home Office to revoke the company’s sponsor license due to a failure to follow the certificate of sponsorship. The Home Office conducted an audit, and discovered several areas in which the employer had failed to meet the conditions set out under their certificate of sponsorship…
EL Failures in Sponsoring Overseas Care Staff
The Home Office determined the position of a senior care assistant was not a genuine vacancy. Their existing employees were interviewed by the Home Office, and it found that the duties did not match those outlined in their job descriptions. There were also issues with English language skills restricting their ability to conduct their work proficiently.
Overseas employees also suffered wage discrepancies which did not reflect the rate required by their certificates of sponsorship. One employee’s wages were reduced while undertaking training, and this reduction had not been reported to the Home Office as per their certificate of sponsorship. Payslips also showed that other employees had not been paid at the rate required. Instead, these reductions were flagged as a salary sacrifice - but the employees were not aware of this salary sacrifice scheme.
The employer had also failed to pay some employees their statutory sick pay and had informed them there was no sick pay entitlement. This failure was a clear breach of legislation. The sponsor licence requires the employer to observe both immigration and employment law. As such, sick pay, national minimum wage, and paid holiday entitlement has to be paid to all employees.
Prestwick Care Ltd v Home Department 2023 – Further Failures
The Immigration Skills Charge is non-recoverable under the Home Office’s framework. The employer had made deductions for recruitment and training costs. Employees were told to pay an agency fee prior to their visa renewal when there was – in fact, no agency involved in the process. The contracts had clauses which state the employees had to repay the sponsor cost if they left the employer within five years. Staff were not informed of this recoupment until they were in the UK, and – therefore, the Home Office deemed the employee had been place in a very unfair position.
Furthermore, the employer did not produce records of the employee’s right to work checks and visa expiry dates. Employee addresses were also incorrect within the records. As such, the company had not followed their sponsor licence by failing to keep correct and up-to-date records.
In response, the employer argued it had taken legal advice from both lawyers and a union, and that the revocation of the sponsor licence would negatively affect their business. The High Court said the Home Office’s role was only to ensure compliance with the sponsor licence and not to evaluate any commercial impact on the employer if the licence is revoked.
Guidance for Employers on Supplementary Employment
Employers offering any supplementary employment must heed caution. This is work that sponsored employees can conduct in addition to the work that they are sponsored to do under their certificate of sponsorship. Such work is only allowed so long as it is on the Shortage Occupation List - or in the same profession and level as the job for which the certificate of sponsorship was distributed. These staff members can only work 20 hours per week, and supplementary work can only occur outside the contracted hours of their contracted job.
Employers offering supplemental employment must conduct right to work checks in line with current legislation before the employment commences. In these cases, employers must ask applicants for a share code they can check for on the Home Office website. This check verifies individual permission to live and work in the UK, as well as any work restrictions they have – such as only being allowed to work for their sponsor employer and any supplementary employment.
Employers should ask the applicant’s sponsor for a letter confirming that they’re working - as well as their job description, occupation code, and normal working hours. They should also ask the applicant if they have any other supplemental work to ensure they work no more than the permitted 20 hours, and establish if they are compelled to work any overtime.
These obligations are essential for employers to follow. The fine for employing illegal workers can be up to a maximum of £60,000 per breach. This is avoided by conducting careful right to work checks.
Upcoming Legal Changes to Sponsoring Overseas Care Staff
Further restrictions on care workers will come into force on 11 March. From this date, care workers will no longer be permitted to bring dependant relatives to the UK. From 4 April, care providers who sponsor migrant workers will also have to register with the Care Quality Commission.
Minimum salary levels for skilled workers will increase to £38,700 – however, there is an exception to this rule for those in health and care worker roles. The Shortage Occupation List will be removed and replaced by the Immigration Salary List. As such, employers will no longer be able to apply the 20 per cent discount to the minimum salary requirement for roles on the Shortage Occupation List. Anyone who sponsor overseas employees must take immediate action to ensure they remain compliant.
This article is for informational purposes only and does not constitute legal advice. If you require any professional assistance with meeting your HR obligations, guidance on upcoming legislation changes legislation, or expert advice on a particular issue impacting your business, please contact the Quest Advice Line Service for FREE on 0116 274 9193.
