While the sponsor licence has definitely provided some relief to employers in the Health and Social Care industry, it has also brought about a few general problems.
Some of the challenges have been brought by the Home Office itself and its enforcement powers which require strict compliance.
Let’s take a look at these challenges.
1. Minimum salary requirements
The Home Office requires the employer to pay a minimum salary which must be met all the time whether or not the employee has worked.
The rationale behind is to protect employees from unscrupulous employers who will not pay employees and expose them to modern day slavery and human trafficking. However, in the healthcare sector it’s difficult to get tenders and contracts with guaranteed hours or work so the work fluctuates.
At one time the employer may have lots of work and sometimes less or no work at all and yet be expected to pay full salary to sponsored workers.
The employer cannot give a “zero hours” contract to sponsored employees as the government does not want the employee to then have recourse to public funds.
2. IELTS
Sponsored workers are expected to speak English at a basic level. As such they must pass the B1 English level or get a confirmation statement that their qualification meets the competency level from the ECCTIS if they are coming from abroad from a non-English speaking country.
The challenge is that some employees provide evidence to meet the English requirement but when they arrive in the UK they do not speak English at all or struggle with communication.
This presents a problem for the employer and the service users who will not understand the employee. One wonders how the employee would have passed the English requirement at the level required by the Home Office
3. Non-compliant employees
Whilst the employer would have taken every step to comply with the Home Office requirements, some employees are not genuine from the start. They will comply with the recruitment process of the employer, get a visa and once in the UK some don’t even turn up for work or some are not committed to the work.
Some come with ulterior motives to switch from the company or from the healthcare visa to another profession. Some employees have come to the UK already pregnant believing that if the child is born in the UK they will automatically become British.
4. Rogue agents
Depending on the country the employees originate from, the employer may use the assistance of employment agents or may actively recruit in that country.
One must bear in mind the WHO “Red List” countries where the employer cannot use agents or actively recruited from there. Some rogue agents have found an opportunity as a result.
They scan the Home Office sponsor licence holders register, randomly call companies and if any company says they have an opportunity the agents would then go to their pool of desperate possible employees and “sell” the COS to the possible employee for several thousands of pounds.
This happens even without the employer knowing that the COS has been “sold” by the agent. Both the employer and the employee would have been played by the agent
5. Very Strict compliance requirements by the Home Office
I must emphasise that employers must at all times comply with the requirements of the sponsor licence.
However, in practice, the approach of the Home Office is that you are either compliant or you are not. If you are not, despite any degree of compliance, wrongdoing, or non-wrongdoing the Home Office will revoke the licence.
Suspension letters are even sent out based on old information on public records such as companies house records which may be several months old. The repercussions of revocation are serious on the employer, employees, service users and the local authorities or NHS who would have commissioned the work.
Possible Resolutions
1. Working Together For Better Compliance
Instead of reverting to immediate revocation the Home Office should work with the employers and give them a chance to correct their errors.
They can give an action plan and review the employer on a regular basis. I do appreciate that if the breach is quite serious then revocation should be done immediately to protect the system and service users.
2. Review of the English requirement
This may entail increasing the proficiency levels of the English test or maybe monitoring how the English tests are conducted. If someone uses the alternative of having their qualifications checked by ECCTIS then this organisation may need to review its processes
3. Allow flexibility in salary
Where the employer has lost some contracts or service users the Home Office may allow them to make an application to pay salaries less than the sponsored workers rate but not below the national minimum living wage.
This should be on a case-by-case basis. If the position does not change after a certain period then the employer should make the tough decision to terminate the employment contract.
Dependants
The Government has proposed that from spring 2024, new entrants on sponsored work will not be able to bring dependents.
This will affect the number of people who can come to do care work which most local people shun doing. Employers will be heavily affected, and service levels may go down.
COS
The Home Office has moved to make it more difficult in obtaining COS and for good reason.
However, the Home Office should be realistic in their requirements for example they ask the employee to prove their actual hours or provide contracts with agreed hours or service users when the professional buyer contracts by NHS and local authorities don’t mention specific hours or service users but give the employer a chance to bid for work on portals etc.
DVSA licence requirements
Domiciliary care involves driving around. Some employees from certain countries have not been able to exchange their international licences to British licence due to DVSA requirements.
This means an employer may end up with non-drivers instead of drivers thus affecting the performance of the company.
At Tann Law Solicitors, we understand the challenges and complexities of the Home Office requirements. We invite you to get in touch with us.
Let’s navigate these challenges together. Our expertise is your peace of mind.