Among the many legal obligations UK sponsors are bound by lies the bedrock of all obligations: record-keeping.
In the absence of compliant record keeping, sponsors risk finding themselves exposed to civil penalties or revocation of their licence, irrespective of whether they executed their duties or not. Accurate record-keeping must be held in the correct format and retained for a prescribed period, readily available for Home Office inspection visits.
The record-keeping rules are contained in Appendix D: record-keeping duties, and they are meticulous, extending to the myriad of documents for each sponsored worker, which includes right to work checks, contact details, attendance records, rate of pay records, and qualification files. Organisations are also subject to more extensive record-keeping rules which do not relate to employees, but focus on their recruitment processes, and how they discharge their duty to recruit from the pool of UK workers before hiring internationally.
Within this legislative framework of rules lies the complex system of document retention requirements, which must be followed scrupulously to ensure personal data is processed lawfully. Whilst record keeping and retention periods are expanded on in Appendix D, they must also be balanced against the foundational position which is in the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR), to ensure personal data is protected.
It is critical that organisations remain abreast of the retention periods they are subject to, taking into account the purpose of each specific document and the differing requirements they have. The starting point from Appendix D for document retention in respect of migrant workers is that they must be kept until whichever is the earlier of:
- one year after the date on which your sponsorship of the worker ended; or
- the date on which a compliance officer has examined and approved the overseas workers documents, if this is less than one year after the end of the overseas workers sponsorship
In addition, seven key principles from the Data Protection acts must be accounted for when processing personal data, to ensure sponsors remain compliant with both the Home Office and the Information Commissioner's Office, the regulatory body responsible for data protection law in the UK.
These principles ensure that personal data is used fairly, lawfully, transparently, for a specified, explicit purpose, used in a way that is adequate, relevant, and limited; accurate and kept up to date; kept for no longer than necessary; and handled securely.
To remain up-to-date with record-keeping duties for overseas workers who have ceased employment, it is prudent to enforce effective strategies that complement the sponsor's obligations. These can take the form of effective file management policies, ensuring Appendix D files are created for each migrant worker, which are regularly updated on a monthly basis to account for attendance changes, or enforcing proper record keeping by carrying out mock audits where qualified practitioners will assess your file management systems and issue a mock rating.
If you are a UK sponsor and are concerned about your record-keeping compliance and would like assistance in meeting the present rules, please contact us.
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