Employer Sponsorship Challenges For The Care Sector

Article by Fozia Iqbal, Senior Business Immigration Solicitor at Harper James (www.harperjames.co.uk)

The care sector has experienced a labour shortage for some time. Following Brexit and the end of free movement, the number of vacancies in the sector increased significantly as many roles were previously filled by low paid workers from the EU, which made the situation critical. To help fill these vacancies, the Migration Advisory Committee (MAC) advised the government to include care workers and home carers on the list of Shortage Occupations as an interim measure, making foreign care workers eligible to come to the UK on sponsored Skilled Worker visas. This recommendation was adopted and implemented in February 2022. As Health and Care Workers, care workers were exempt from the health surcharge and the minimum salary thresholds, so cheaper to sponsor than other foreign workers. Equally, they are not required to have specific qualifications or skills to take up these roles so the sector is attracting large numbers of foreign workers to the UK.

With a growing need for adult social care, the sector is increasingly reliant on sponsored foreign workers, many bringing family members and dependants to the UK with them. At the end of 2023, record levels of net migration were widely reported (745,000 in 2022) and the increase of foreign labour in the care sector was identified as a contributing factor. With an election approaching in 2024, the government rushed to implement several changes to the Immigration Rules to help bring numbers down.

Additionally, concerns have been raised about abuse of the sponsorship regime in the care sector, including foreign workers paying to be sponsored to the UK with no employment once they arrive, some working over the 20 hours a week they are entitled to in supplementary employment and working too many hours altogether with consequent risks to those they are providing care to, and general low wages driving down wages in the sector overall.

As a consequence, the Home Office is subjecting employer sponsors in the care sector to increased scrutiny, with many being regularly audited, either through visits, telephone interviews with follow up documentation requests, or email questionnaires. Further evidence is being requested to support certificate allocation requests, many of which are being delayed for weeks if not months, only to be subsequently refused. Sponsorship in this sector is therefore likely to get more challenging.

Additional challenges and changes
Immigration changes specifically affecting the social care sector have been proposed by the government to be implemented from 11th March 2024.

These include:
– Sponsors in the care sector will need to be CQC registered for new sponsorship of care workers.
– New care workers sponsored to work in the UK as Skilled Workers will not be able to bring their family members to the UK.

These changes are aimed to help ensure genuine care industry businesses are involved in the sponsorship regime and to reduce the number of sponsored care workers coming to the UK, particularly with it becoming a less attractive option for those wishing to bring their family with them.

The government has also introduced further changes to reduce reliance on foreign workers, which will impact the care sector.

These include:
– Increases to the health surcharge – from £624 to £1035 per year from 6 February 2024
– Increases to the penalties for employing illegal workers – with effect from 13 February, fees have tripled from £15k to £45k (for 1st single offence) and from £20k to £60k (for repeated breaches)
– Minimum salary threshold increases will be introduced for most roles and Skilled Workers generally, although care workers should be exempted from these significant increases

How care sector businesses can address the challenges and prepare for changes
With the government’s general direction aimed at reducing the reliance on foreign workers in the UK labour market, businesses in the care sector must be cautious when building their businesses as over reliance on foreign workers will inevitably attract the attention and scrutiny of the Home Office, which is currently targeting the care sector for compliance visits.

As most businesses in the care sector are new to the sponsorship regime, they will be unfamiliar with the workings of the Home Office, which is very investigative in its approach to sponsorship management. Sponsor employers therefore need to ensure they are ready for the possibility of audits and compliance visits from the Home Office.

To prepare for this, businesses should review their recruitment, compliance and record keeping practices to ensure they are fully compliant with Home Office requirements and their sponsorship obligations. Conscientious and timely management of the sponsor licence and reporting requirements is also extremely important. Requesting mock audits from experienced legal advisors is a helpful tool to check that record keeping is compliant and for peace of mind.

Failure to meet sponsorship obligations and responsibilities, or any misuse of the licence, can lead to suspension and even revocation of sponsor licences, ultimately compromising future sponsorship and even ongoing sponsorship of workers under that licence.

Additionally, when making Certificate of Sponsorship allocations requests, sponsor employers should consider making limited requests, properly reflecting the employment needs they can evidence and justify with contracts and agreements. These are regularly requested by the Home Office and must be provided in responses to requests for further information. Failure to do so, can lead to refusal of requests and limits to the number of foreign workers who can be sponsored, which could impact the growth and profitability of the business. If sponsor employers are uncertain as to how to interact and correspond with the Home Office, they should seek experienced legal advice.

The Home Office always intended for the sponsorship of foreign workers into the social care industry to be a temporary measure so the scrutiny and regular interaction with them is likely to continue until they see evidence of reduced need for foreign workers in the sector.