“Once you have assigned a CoS to a worker, you must tell us they fail to start their employment, are absent, without permission or there are any significant changes to the nature of their work or salary, or to your organisation. For full details of your reporting and other duties, see: Part 3: Sponsor Duties and compliance.”
“He uploads some documents when working at the office and when the engineers are busy and do not have the time, he uploads some documents onViewpoint. He travels to construction sites to collect soft copies of builtdocuments to submit on Viewpoint. and uses AutoCad, Word, Excel andAccess software.”
“You provided a copy of BIR’S Code of Conduct Civil Engineering & Technology (dated August 2021). Clause 11 Working Time Regulations states: “All hours Employee work outside of his/her contract hours will be considered as Overtime, and this will be paid on top of their basic pay as overtime or additional paid holiday or mixture of both as per Employee’s wish. Overtime can be paid monthly/ every 3 months/ 6 month or 12 months interval as per Employees request.”
“I am writing to confirm the nature of our working relationship with Blue Inn Ltd in relation to the ICT Papermill and Forgemasters projects. Blue Inn Ltd has been engaged by us as a sub-contractor for the delivery of engineering works on the project. As an engineering sub-contractor, Blue Inn Ltd was appointed to deliver specific engineering services on-site. In this role, Blue Inn Ltd retained full responsibility for managing their engineers, including all day-to-day direction, control, and supervision of their activities. Blue Inn Ltd has the discretion to choose which individuals they employ to fulfil the specific tasks required for the subcontract, and they may assign different individuals to complete various aspects of the work. These decisions are made independently by Blue Inn Ltd without our direct involvement. These engineers are not our employees, and no employer-employee relationship exists between us and the individuals supplied by Blue Inn Ltd. The specific duties and responsibilities assigned to Blue Inn Ltd’s engineering team were in line with the terms of the project and their subcontract agreement, ensuring we maintained full accountability for the successful completion of the project as per the contractual requirements.”
“I am writing to you to confirm the nature of our working relationship with BlueInn Ltd in relation to the Merrick Place project at South Hall. Blue Inn Ltd has been engaged by us in two distinct capacities: firstly, as asub contractor for the delivery of engineering works, and secondly, as alabour supply agency for additional staffing needs on the project. As an engineering sub contractor, Blue Inn Ltd was appointed to deliverspecific engineering services on-site. In this role, Blue Inn Ltd retained fullresponsibility for managing their engineers, including all day-to-day direction,control, and supervision of their activities. Blue Inn Ltd has the discretion tochoose which individuals they employ to fulfil the specific tasks required forthe subcontract, and they may assign different individuals to completevarious aspects of the work. These decisions are made independently byBlue Inn Ltd without our direct involvement. These engineers are not ouremployees, and no employer-employee relationship exists between us andthe individuals supplied by Blue Inn Ltd. The specific duties and responsibilities assigned to Blue Inn Ltd’s engineering team were in line withthe terms of the project and their subcontract agreement, ensuring wemaintained full accountability for the successful completion of the project asper the contractual requirements. In addition to their sub-contractor role, Blue Inn Ltd provided a range of labourers to assist in the project. These labourers were employed under a separate labour supply agreement, where they were directly integrated into our on-site team and worked under our management and supervision. This role was not one of “hiring out” workers to a third party, nor did it involve providing ongoing routine services to any other organization. The workers supplied were fully managed and controlled by our team, ensuring that the work performed was in direct support of the project’s goals and was fully aligned with the specific duties required of them To streamline the administrative process, we agreed with Blue Inn Ltd to issue a single invoice for both their sub-contract work and labour supply services. Timesheets were used solely to confirm attendance and to ensure compliance with health and safety regulations. We did not verify or monitor the specific tasks or working hours of Blue Inn Ltd’s engineers, as this responsibility remained with their management”
“Working Time Regulations Under the Working Time Regulations 1998 , you are not permitted to work more than an average of 48 hours per week unless Employee opt out. All employees with in Blue Inn Ltd’s sponsor agreed to opt out, so they can work more than 48 hours per week. Employee may withdraw your consent at any time by giving us seven days notice in writing. All hours Employee work outside of his/ her contract hours will be considered as Overtime, and this will be paid on top of their basic pay as over time or addition paid holiday or mixture of both as per Employee’s wish. Overtime can be paid monthly/ every 3 months/ 6 month or 12 months interval which is subject to Employee’s request.”
“CIDON Construction …. We would therefore expect that any documentation submitted to confirm the contractual relationship between two companies for the provision of services would include a specific end date for the provision of those services. As the documentation provided both to our compliance officer and with the submitted representations does not confirm an end date to the contract, we cannot be satisfied that your client’s sponsored workers are not undertaking an ongoing routine role for CIDON Construction. We further note that both the letter and sub-contract orders submitted indicate that your client retains control for the control, management and supervision of the workers assigned to complete work for under the CIDON Construction contract. At the time of our compliance visit, your client stated in their interview with our compliance officer that Tharshikan Tharumanathan (C2G9K07753I) and Thirunathan Pradeepkumar (C2G1C67923P) were assigned to work with CIDON Construction. Modebest Builders ……. We note that the letter provided refers to a labour supply agreement which is stated to be separate from the agreement for the provision of sub-contracting services. However, no copy of this agreement has been provided in support of the submitted representations. As a result, we are unable to confirm that your client does have separate contractual arrangements in place for their sponsored workers than other workers. This is of significance as on10 October 2024 , following the signing of the sub-contract order previously provided to our compliance officer, Mr Lennox stated that your client was a labour agency and were not employed as a subcontractor. We note that the letter from Mr Lennox notes that they used timesheets to confirm attendance and ensure compliance with health and safety regulations. This is consistent with the sub-contract order previously provided to our compliance officer which states: Modebest Builders Ltd also happy to confirm Blue Inn Ltd (sub contract staff) who on site via Blue Inn Ltd timesheet for Health and Safety purpose only. Modebest Builders Ltd will not verify working hours or number of break/ lengths they takes as this down to Blue Inn Ltd’s management. No timesheets relating to your client’s sponsored workers have been provided with your representations for the period following the signing of the sub-contract order between Modebest Builders and your client. As such, we are unable to confirm if contemporaneous timesheets are submitted for this purpose. However, the timesheets in the name of Sharujan Ramesh (C2G2S08236H) provided to our compliance officer for the period between the weeks ending5 April 2024 and27 September 2024 for their work with Modebest Builders all include the following declaration: I certify that the temporary worker has satisfactorily completed the total hours worked after any breaks taken and is due any expenses or other costs indicated above. I also agree to comply with the Terms & Conditions of Business detailed on Blue Inn’s website/ contract between Blue Inn Ltd & US and confirm that I am authorised to approve this timesheet for payment. The declarations are signed and dated by Kukanathan Jathugulan, who signed the sub-contract order on behalf of Modebest Builders. The signing of timesheets with such a declaration is not consistent with your client having full control of the outcomes and outputs of their sponsored workers. No contractual documentation for the period prior to the signing of the sub-contract order in October 2024 has been provided. This means that we are unable to confirm whether the timesheets previously provided to our compliance officer contain a generic declaration or are instead reflective of a difference in the terms and conditions of the involvement of your client’s sponsored workers with Modebest Builders. We further note that the sub-contract order relating to Modebest Builders has an anticipated duration of ‘TBC’. The letter provided by Mr Lennox does not confirm the expected end date of services to be provided by your client in relation to Merrick Place. As was the case in relation to CIDON Construction, we cannot be satisfied that your client’s sponsored workers are not undertaking an ongoing routine role for Modebest Builders. In relation to the work completed by your client’s sponsored workers in relation to their contract with Modebest Builders, we acknowledge that you have submitted documentation which is stated to purport to work completed by Mr Ramesh. Whilst we have been able to confirm that this documentation relates to work at Merrick Place, we have only been able to definitively conclude that one document was completed by Mr Ramesh, a QA-235 form dated11 March 2024 , and none of the documentation provided confirms that Blue Inn Ltd was responsible for directing Mr Ramesh’s work. We also note that two forms with reference QA-218 dated5 July 2024 and 23 January are on sheets with a Modebest Builders header. We will discuss this documentation further in General Sponsor Duties 2 below. No documentation has been provided with your representations relating to any other sponsored workers completing work under the Modebest Builders contract. We would expect that if your client was responsible for assigning work under their contract with Modebest Builders, you would be able to provide documentation such as work assignments, or supervision records which confirms their control of the outcomes and outputs of the work completed under this contract. As you have been unable to provide this documentation, we are not satisfied that our concerns relating to this contract have been satisfied. Other contracts ….. We acknowledge that you have provided a copy of an email chain relating to communication between your client and Mark McGill of 4D Structures. On 7 March, your client emailed Mr McGill, stating: Hi Mark, As we discussed could you please confirm Dilukshan SRITHARAN’s hours on the timesheet include one hour (1Hr) break?’’ Mr McGill responded on the same date, ‘This is correct’. Whilst we acknowledge the submission of this documentation, you have provided no further documentation which confirms your client’s contractual arrangements with 4D Structures Ltd for the period prior to the signing of the appointment of sub-contractor document on22 October 2024 . We therefore cannot be satisfied that the contractual arrangements in place prior to this date were permitted under the published sponsor guidance. In addition, upon further examination of the appointment of sub-contractor document, we note that in the Programme section, it is stated ‘Anticipated duration: 52wees and above.’ (sic) As with the agreements relating to CIDON Construction and Modebest Builders, the lack of a specified end date for the contract means that we cannot be satisfied that your client’s sponsored workers are not fulfilling an ongoing routine role for Modebest Builders. Furthermore, no evidence of work has been provided in support of the submitted representations in relation to the sponsored workers who have been assigned to work on the contract for 4D Structures Ltd. We therefore cannot be satisfied that your client retains control of the sponsored workers as claimed in the submitted representations, or that their sponsored workers are filling a genuine vacancy. We note that no further documentation relating to your client’s additional contracts has been provided with the submitted representations. As a result of the above, we are not satisfied that our concerns in relation to this issue have been addressed.”
“Our concerns in this area have not been alleviated and as such this issue is maintained. Independent of other concerns contained within this letter, this issue alone is sufficient to revoke your client’s sponsor licence.”
“We note that in support of your representations, you have submitted a number of payslips in relation to Mr D Sritharan: • December 2024:£1,988.65 monthly pay,£265.15 for Christmas Day and Boxing Day,£662.87 for annual leave (5 days), and£500.00 for overtime. Gross pay is£3,416.67 including overtime. • January:£2,663.05 monthly pay,£253.62 annual leave (2 days). Gross pay is£2,916.67 . • February:£2,916.67 monthly pay. We additionally acknowledge that you have submitted copies of transaction listings from your client’s business account confirming that they have been paid in line with the net pay stated on their payslips. We are therefore prepared to accept that Mr D Sritharan received a payment in December 2024 for overtime. However, Mr D Sritharan’s payslip does not confirm the number of hours or the rate at which they were paid overtime. No other documentation has been provided in support of the submitted representations to enable us to confirm the number of hours or the rate at which they were paid overtime. We further acknowledge that you have provided a copy of an email chain relating to communication between your client and Mark McGill of 4D Structures. On 7 March, your client emailed Mr McGill, stating: Hi Mark, As we discussed could you please confirm Dilukshan SRITHARAN’s hours on the timesheet include one hour (1Hr) break?’’ Mr McGill responded on the same date, ‘This is correct’. However, upon further examination of the timesheets previously provided to our compliance officer for Mr D Sritharan, we note that they included the following declaration: I certify that the temporary worker has satisfactorily completed the total hours worked after any breaks taken and is due any expenses or other costs indicated below. I also agree to comply with the Terms & Conditions of Business detailed on Blue Inn’s website/ contract between Blue Inn Ltd & US and confirm that I am authorised to approve this timesheet for payment There is therefore a contradiction between the statement on the timesheets previously provided and the email provided in support of your submitted representations. We therefore cannot be satisfied that the records relating to Mr D Sritharan are an accurate representation of the work that they have completed, and as a result, we cannot be satisfied that Mr D Sritharan has consistently received the hourly rate of pay specified on their CoS. Annex C1 (aa) of the Workers and Temporary Workers: guidance for sponsors (Part 3) states: You pay a sponsored worker less than you said you would on the worker’s CoS, and: • you have not notified us of the change in salary; or • the reduction is not otherwise permitted by the Immigration Rules or the Workers and Temporary Workers: guidance for sponsors Our concerns in this area have not been alleviated and as such this issue is maintained. Independent of other concerns contained within this letter, this issue alone is sufficient to revoke your client’s sponsor licence.”
“In my view, the rule is that, before a statutory power is exercised, anyperson who foreseeably would be significantly detrimentally affected bythe exercise should be given the opportunity to make representations inadvance, unless (i) the statutory provisions concerned expressly orimpliedly provide otherwise or (ii) the circumstances in which the poweris to be exercised would render it impossible, impractical or pointless to afford such an opportunity.”
“…. A discrepancy between the earnings declared to HMRC and to the Home Office may justifiably give rise to a suspicion that it is the result of dishonesty but it does not by itself justify a conclusion to that effect. What it does is to call for an explanation. If an explanation once sought is not forthcoming, or is unconvincing, it may at that point be legitimate for the Secretary of State to infer dishonesty; but even in that case the position is not that there is a legal burden on the applicant to disprove dishonesty. The Secretary of State must simply decide, considering the discrepancy in the light of the explanation (or lack of it), whether he is satisfied that the applicant has been dishonest. ….. we consider . . . that the concept of standard of proof is not inappropriate in the present context. This is because what is being asserted by the Secretary of State is that an applicant for ILR has been dishonest. That is a serious allegation, carrying with it serious consequences. Accordingly . . . the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty.”
“…. we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards undesirability and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct. ……. This leads to the proposition that, unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because it ensures that the decision-maker is fully informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come.”
“Adapting the principles in paras 42—43 and 55 of Balajigari[2019] 1 WLR 4647 to the compliance investigation process, a discrepancy between the job description on a worker’s CoS and the role she is actually performing may justifiably give rise to a suspicion that the sponsor has deliberately (ie dishonestly) exaggerated her role in order to facilitate her stay in this country, but it does not by itself justify a conclusion to that effect. It may call for an explanation and, if not satisfied by that explanation, it may be legitimate for the SSHD to infer dishonesty and revoke the licence on that basis. But an allegation of dishonesty in this context imposes four particular requirements on the investigators. First, as this court stated in Balajigari, dishonesty is a serious allegation carryingwith it serious consequences. It is for the SSHD to establish, on a balance of probabilities, that the sponsor acted dishonestly. There is no burden on the sponsor to prove that it did not. Secondly, where the SSHD has a suspicion that a sponsor has acted dishonestly, she must indicate clearly to the sponsor that she has that suspicion so that the sponsor has a fair opportunity to respond. Thirdly, having received the sponsor’s representations in response, the SSHD must consider all the circumstances before drawing the inference that the explanation for the discrepancy between the job description in the CoS and role actually being performed by the worker is that the sponsor has deliberately exaggerated her role in order to facilitate her stay in this country. If the SSHD has clearly indicated her suspicions in the suspension letter, the sponsor may put forward alternative explanations which the SSHD must consider with other relevant matters. Fourth, if the SSHD draws the inference of dishonesty, she must set out her reasons in the revocation letter. There is no need for the reasons to be lengthy or legalistic. But a sponsor whose licence is being revoked because the SSHD has concluded it has acted dishonestly is entitled to know the reasons for that decision, notwithstanding that the decision is taken on her behalf by relatively junior staff.”
“The Guidance does not set out the period over which the SSHD should review a person’s pay when assessing whether the requirement has been met. The CoS, on the other hand, sets out an annual salary that the employee must earn. The assessment is whether the employee is being paid the required annual rate. Neither the Guidance nor the CoS impose an obligation for the employee to be paid that annualised rate on each day of the year, nor in each week of the year, nor each month of the year. If that were the case, then a person would fall foul of the rules if they were paid for a seven-day shift one week and a three-day shift the next week, or took two weeks unpaid holiday in a particular month, or did not work five days in one week as it contained a bank holiday. That would be nonsensical. The employees in this case had not worked for a full year when the compliance visit took place. There must therefore be some sort of assessment by the decision maker of pay over a period of time that is less than a year in order to assess whether the required annual salary is being paid.”