How to Support Your Sponsored Care Workers and Limit the Risk of Exploitation

By Sarah Keeley, Senior Associate Immigration Lawyer at Stone King LLP (www.stoneking.co.uk)

Up and down the country, employers in the care sector are facing chronic recruitment problems, potentially leaving elderly and vulnerable people without much-needed support.

Despite the Government’s “hostile” stance on immigration, employers are understandably turning to overseas nationals to fill the jobs often overlooked by the homegrown workforce. The result is that, despite caring being an immensely rewarding profession, the care sector sponsors the majority of all overseas workers in the UK.

In recognition of skills shortages, health and care workers have been exempted from planned hikes to the minimum salary threshold for Skilled Workers Visas. However, the Home Office is committed to an immigration enforcement drive in order to crack down on abuse within the sector. Care operators should therefore expect to be subject to greater scrutiny with a higher risk of fines, licence suspensions and revocations in 2024.

Additionally, visa reforms including newly arriving health and care workers no longer being allowed to bring dependent family members to the UK, may mean fewer overseas nationals seek sponsorship in the UK.

Proponents will, of course, say the government’s tough approach to immigration compliance is necessary to drive down overall migrant numbers.

Regardless of opinions, employers need to ensure they are complying with legal requirements and realise that overseas workers may need additional support, as they are in a strange country with different customs and working practices, and English is unlikely to be their first language. Good governance and employee relations can have a demonstratable impact on reducing the risks of exploitation during an overseas worker’s engagement.

So, what is the legal position when employing overseas workers? Employers need to think about both immigration law and employment law, which may seem contradictory.

All UK employers need to conduct right-to-work checks, both for UK and overseas nationals, and understand the conditions attached to visas that allow work in the UK, including Student Visas and Graduate Visas.

Employers wanting to sponsor overseas nationals on Health and Care Visas must apply for, and hold a sponsorship licence. This licence is a valuable asset for employers that would otherwise struggle to fill vacancies and/or be subject to significant agency costs, but, due to a sponsor’s ongoing compliance duties, it is also a significant responsibility.

Employers should conduct a comprehensive review of their sponsor licence use, in addition to right-to-work practices, as even “minor” breaches can undermine the trust placed in an employer under the sponsorship system.

As the Health and Care Visa is tied to a specific employer, workers need to seek new sponsorship and apply for a new visa if they want to leave their sponsor and change employer. In my experience, this requirement is not well understood or followed. This can leave sponsored workers working illegally for other employers if they are unable to work enough hours with their sponsor. It is this non-compliance that the Home Office is seeking to crack down on.

The recent case of Prestwick Care Ltd should act as a cautionary tale for employers that do not wish to lose their sponsor licence and, subsequently, their sponsored workers.

Prestwick Care Ltd sponsored 219 health and care workers across several homes in the North-East. In October 2022, the Home Office conducted a sponsor compliance visit, during which they highlighted several instances of failure to comply with sponsor record keeping and reporting duties, constituting a lack of employer oversight.

The company’s sponsorship licence was revoked, despite the commercial impact on the business, the effect on the delivery of health and care services to the wider community, and the impact losing their jobs had on individual workers who had moved to the UK on the basis of this sponsorship.

To avoid significant financial and operational risk, care operators should prioritise training including on the effective management and use of their sponsorship licence, and employers need also to consider their employment law duties, employee relations and the risks of exploitation. For example, employers should ensure they comply with the National Minimum Wage Act.

Dealing with overseas nationals and the complexities of the UK’s immigration and sponsorship system is an inevitable part of running a business in the care sector. This should not detract from essential strategies to support training, recruitment and retention of British workers within this area, however, the scale of the skills shortage within care means overseas workers provide a necessary cushion for any long-term transition within the sector.