Health and Care visa workers: what problems do they face at work and how can advisers help them?

The social care sector is notorious for low pay and poor working conditions, causing difficulty in staff recruitment and retention. In February 2022, to address staffing shortages, the UK government made care workers eligible for skilled worker visas, leading to a huge increase in employers actively recruiting overseas. According to Home Office statistics, ‘Skilled Worker’ visa grants increased by 34% between June 2022 and June 2023, and ‘Skilled Worker — Health and Care’ visa grants increased by 157% in that period.

Unfortunately, Citizens Advice is now seeing an increasing number of enquiries from these workers about very poor treatment at work.

Health and Care Worker visas: what are they?

Health and Care Worker visas are a type of Skilled Worker visa. Specific healthcare professionals and adult care sector workers can apply — in most cases from abroad — to work in the UK. The work must be for an eligible licensed employer. The employer must first allocate a certificate of sponsorship (‘CoS’) to the worker as the CoS number must be included in the visa application.

Over 101,300 visas were issued in the care sector in the year ending September 2023. This makes them the largest single group of visa grants in routes leading to settlement — surpassing refugee grants, the Ukraine Schemes, family visas and visas for British nationals from Hong Kong.

The visa is designed to help with a skills shortage and permits the worker and their immediate family to come and stay in the UK for a period of up to 5 years with the opportunity to apply to settle in the UK at the end of the 5 years. The visa benefits from quicker decision making from a dedicated team at the Home Office. It has reduced visa fees and is exempt from the Immigration Health Surcharge.

However, as with all other skilled worker visas, the employer must pay an Immigration Skills Charge for each CoS issued of £182 or £500 — depending on the size of the business — every 6 months. This fee is meant to encourage employers to train up domestic workers and reduce reliance on overseas workers.

If the worker loses, or wants to change their job they must either leave the UK or find another job with a CoS. If they do find another job, they need to effectively apply for a fresh visa and pay the application fees again and update their records with the Home Office.

What problems are these clients facing at work?

Workers on Health and Care Worker visas (referred to as an ‘HW’ in this article) have reported problems throughout the employment cycle, from the recruitment stage, to non-compliance with basic UK employment rights when in employment, to issues post-employment, such as employers demanding reimbursement of huge fees.

At the recruitment stage, HWs are reporting issues including

• Employers failing to honour promises made and misleading workers (for example- an HW being told when they are already in the UK that they must also pay for work related travel expenses, or being given unsuitable housing)
• Delays in the start of employment (that significantly exceed the 28 days allowed) once the HW has arrived in the UK
• Having to pay extortionate fees to secure the work, leading to HW being significantly in debt before employment starts.
• Scams such as being recruited for non-existent jobs, and employers offering HWs visitors visas rather than Health and Care Worker visas.

In relation to fees, while charging workers fees and expenses can be lawful in certain circumstances, HWs are reporting that employers are charging fees that:

• breach their sponsor licence (ban on recovery of Immigration Skills Charge) or without the express prior agreement with the worker
• are hugely inflated and with unreasonable expenses, especially in comparison to what care workers typically earn. According to Unseen UK’s report, £11,800 is the average amount of debt reported by people who contacted their helpline, to pay for recruitment, visa, and travel costs.
• breach legislation such as the Employment Agencies Act 1973 (ban on work-finding fees) and the National Minimum Wage Act 1998
• are otherwise unacceptable, for example because they are payable even in circumstances where employment ends shortly after it starts through no fault of the HW, or because they do not taper with the passage of time

A complicating factor is that frequently the fees are charged by, have been paid to, or are payable to third parties such as agencies. Some of those agencies are in countries where the charges are not unlawful, thus circumventing UK laws on agency fees. Often, the identity of the various parties involved in the recruitment is difficult to ascertain, and the HW may have few documents.

During employment, HWs are reporting:

• non- compliance with basic UK employment rights — including breach of section 1 of the Employment Rights Act 1996 (no statement of written terms and conditions), unpaid wages, breaches of the National Minimum Wage, and breaches of the Working Time Regulations 1998
• payslips that state they were paid more than what was actually paid
• discrimination, for instance where the HW is not paid their wages but British workers in the same workplace are
• being forced by their employer to pay over part of their wages to a third party, for example to a manager’s family member
• compulsory contract variations that breach the sponsor licence (for example because the HW will earn less than the minimum salary allowed), being laid off without pay when there is no contractual right to do this, training not being provided or compulsory training being unpaid
• threats of deportation made by the employer when the HW complains about working conditions or having to repay fees

The exploitation continues on and after termination of employment. HWs have reported being suddenly and unexpectedly dismissed shortly after arrival — in some cases possibly because the employer or agency has already pocketed the fees paid by the HW to get the job.

HWs are in some cases told they must repay very large fees when they leave employment, including where they have been dismissed through no fault of their own.

What makes HWs on visas different from other care workers?

Some of the problems described are not unique to HWs — for example, non-migrant care sector workers also often report breaches of the Working Time Regulations 1998 and of the National Minimum Wage, including when they are undertaking work related travel. However what is unique about HW is their vulnerability and their lack of enforcement power. That means that the solutions to help them are different than for other workers.

HWs are vulnerable for several reasons. Many lack familiarity with UK legal rights and with organisations that can help. We have found that HWs often present to Local Citizens Advice as destitute and aren’t always aware that their employment rights have been breached. HWs are often recruited via multiple parties, sometimes located abroad, and many have already incurred significant debt in just getting the job and to the UK.

However, the main reason for HW vulnerability is the conditions of the Health and Care Worker visa. A HW’s priority is usually to remain in the UK, but that depends on ongoing employment by a sponsor employer. If the HW wants to change jobs, they have to apply to the Home Office, and a fee is payable- see the guidance on gov.uk . They can’t easily switch jobs or pick up an extra job.

Furthermore, it’s a condition of the Health and Care Worker visa not to have recourse to public funds- meaning that the HW cannot claim means tested benefits, compounding the problems they already have with low pay, indebtedness and workplace exploitation. HW may be particularly worried about being forced to leave the country in the situation where they already owe money to individuals/agencies in their home country.

What happens if a HW leaves their sponsored job ?

Whether the departure is due to dismissal or resignation, the employer must report within 10 days to the Home Office that the HW has left the job. If the HW has more than 60 days on their visa remaining they will be notified by the Home Office that their visa will be cancelled after 60 days. They thus have 60 days to find another job or leave the UK. It is then up to the individual HW to look for another eligible sponsor and update new job details with the Home Office within the 60 days. So long as they get a new CoS and apply for the new visa before the cancellation date, the HW can lawfully remain beyond this time while they wait for a decision from the Home Office.

The Home Office has the power to curtail the 60 day period before the visa is cancelled if the HW is dismissed for gross misconduct.

How does this impact enforcing rights?

Of course, UK employment rights apply to all workers working lawfully in the UK, regardless of nationality and visa status. For example, all employees including HWs are legally protected from dismissal under section 104 of the Employment Rights Act 1996 for asserting their statutory rights. And most UK employment rights can ultimately be enforced by taking Employment Tribunal action.

But, given the long delays in the Tribunal system, and given that, to stay in the country, an HW must be in sponsored employment, going straight to the Tribunal may not be the best advice for a HW being exploited at work. It will not achieve the primary objective of most HWs, that is, to remain in the country. A HW might be able to exceptionally apply for permission to stay outside the Immigration Rules — or return on a visitor visa — to conduct the litigation but would not be provided with support, benefits or the right to work whilst doing so.

Put simply, what good is a Tribunal case if the client has meanwhile been forced to leave the country? Although it is technically possible to bring a Tribunal claim from abroad, restrictions exist on the giving of oral evidence from certain countries, and clearly there are practical obstacles.

Given these difficulties, what might be a good strategy for a HW being exploited at work whose priority is to remain in the country?

We think that in most cases, the best advice is for the HW to preserve their current working relationship with the employer if feasible, being sure to keep a record at home of employment law breaches by the employer. For example, if the issue is excessive working hours, or being expected to work without pay, the HW should keep their own record of the hours they are working.

Meanwhile, the HW should try their best to quickly find other sponsored employment, with a view to then applying to the Home Office to ‘update’ their visa, and leaving the problem employment. Specifically, the HW would need to get a job offer and a CoS from the new licensed employer to then apply to the Home Office for further leave. Once further leave is granted by the Home Office, the HW should start working for the new employer within 28 days. The HW will need to think about when to resign from their old job with all this in mind. We recommend that HWs familiarise themselves with the Home Office guidance Applying for health and social care jobs in the UK from abroad — it is also useful for people already in Britain- and that HWs using recruitment agencies should be encouraged to use one on the Ethical Recruiters List.

Once the HW is in their new job and has updated their visa, then they should take action against their former employer for the employment law breaches. This could mean taking Tribunal/court action themselves, or approaching an enforcement agency with a complaint, depending on the circumstances.

HWs should be advised however that delaying Tribunal action until new employment is secured does carry the risk of missed Tribunal deadlines. Almost all Employment Tribunal claims have to be started within 3 months less one day from the act complained of (subject to the Early Conciliation process). For HWs claiming unpaid wages or breach of the National Minimum Wage (NMW), making a county court claim could be an alternative, as the limitation period for breach of contract is 6 years.

Who can help?

Enforcement agencies that can help include the Gangmasters & Labour Abuse Authority (GLAA), the HMRC National Minimum Wage enforcement unit (HMRC), and the Employment Agency Standards Inspectorate (EAS)- all of whom work in tandem. A key advantage of asking an enforcement agency to intervene is that they will do the enforcement work, rather than the HW having to litigate in a personal capacity. Another advantage is that enforcement agencies will often investigate breaches for other staff in the workplace, not just for the complainant. But a key disadvantage is that enforcement agencies have limited remits and invariably will not have the resources to take enforcement action for all complaints on behalf of every HW.

The GLAA regulates businesses that are legally required to be licensed by it, including those supplying labour to the agricultural, horticultural and shellfish gathering sectors- but not to the care sector. Its role is also to protect all vulnerable and exploited workers and it has general enforcement powers, including for the care sector.

HMRC deals with complaints about non-payment of the NMW — it can investigate complaints and take enforcement action, but not where the complainant also has a Tribunal or court claim ongoing for breach of the NMW. Where the complainant is bringing a Tribunal claim that does not directly concern the NMW, for example for unfair dismissal, we understand that HMRC are likely to delay taking action until the proceedings are resolved, to ensure that they do not investigate a complaint that has already been determined by the Tribunal.

There are several advantages to complaining to HMRC. There is no deadline for making a complaint. They will do the leg work and all worker pay in the workplace will be looked at, not just the complainant’s pay. We understand that their investigations routinely cover the 3 years prior to the complaint but sometimes go back further. The chief disadvantage, however, is that HMRC’s remit is limited to the NMW. It does not investigate other complaints, for example about unpaid holiday, notice or redundancy pay.

The EAS regulates all recruitment agencies in Great Britain, including in the care industry. It does not take enforcement action on behalf of individual complainants, unlike HMRC and GLAA, but it will investigate their complaints, and it can take legal action against employment businesses that do not comply with their regulatory obligations. According to the gov.uk guidance, it will also accept ‘concerns’ about the conduct of agencies based overseas. Even if the payment of a work-finding fee is lawful in the overseas country where it took place, remitting any part of that fee to an agency based in Great Britain may breach section 6(1) of the Employment Agencies Act 1973- the ban on work finding fees.

Can the Home Office take action against the employer?

Employers with a sponsor licence do have to comply with a number of conditions, both at the recruitment stage and during the HW’s employment. The Guidance to Sponsors is long and complex, but their key duties include reporting when the sponsored worker

• doesn’t start the job within 28 days
• is absent without permission, or without pay for more than 4 weeks in a calendar year
• has their pay reduced from the level on the CoS
• has significant changes to their employment
• works permanently at a different location or from home
• is no longer sponsored

The relevant issues for which the employer can have their sponsorship licence revoked include:

• failing to comply with any of their sponsorship duties
• providing false information to a government department
• paying a sponsored worker in cash
• engaging ‘in actions or behaviours that are not conducive to the public good’ — for instance discriminating against people with protected characteristics
• giving the sponsored worker a role that doesn’t match either the occupation code or job description on the CoS — for instance they do significantly different or less skilled work
• acting as an agency by supplying the worker to a third party
• where it’s a sham job or one created so the worker can get a visa
• paying the worker less than the salary on the CoS or allowed by the rules

An HW can complain to the Home Office about breaches by their employer of the sponsor licence conditions. For some employers, the threat of losing their sponsorship licence may have some weight. For others it may not. The result of a complaint to the Home Office may be an investigation ultimately leading to the HW’s employer losing their licence. If that happens, the HW’s visa will also be cancelled — meaning that the HW will have just 60 days to either find new sponsored employment or leave the country.

In cases where the HW cannot remain in their current job, cannot secure alternative sponsored employment but does want to remain in the country, it may be advisable to signpost them to an immigration adviser. They can then explore the possibility of switching to a different visa. If it looks like the HW may be a victim of trafficking or modern slavery, then it may be possible to invoke the National Referral Mechanism (NRM) — see below.

Many HW need advice about a demand for money from their employer or a third party. We intend to cover this complex topic in a future article. The Home Office guidance Applying for health and social care jobs in the UK from abroad contains some limited information on this issue.

What if the HW appears to have been trafficked or it’s modern slavery?

The GLAA website has information about factors that suggest modern slavery. It can be difficult to distinguish modern slavery from labour exploitation, but the key seems to be the extent of control of the HW by the employer (which could include financial control due to indebtedness) and whether the HW is free to leave, for example whether their travel documents have been withheld. Human trafficking refers to the situation where someone arranges or facilitates the travel of a person with a view to exploiting them.

In the situation where the HW appears to have been trafficked or to be enslaved, and with their consent, the adviser can refer them to a ‘first responder’ such as the police or the Salvation Army, or they can get further advice from relevant agencies if they are not sure what to do. There is more information on this and the other agencies on the Citizens Advice website page ‘Report human trafficking’

Going into the NRM can result in the HW getting some financial support and accommodation. They can be given permission to stay once it is concluded that they have been trafficked, but only if they are either involved in court action, need further recovery time or would be in danger of being re-trafficked.

In conclusion, while HWs have the same employment rights as other workers, when advising them about what can be done about difficulties at work, some additional information will need to be provided, and a different strategy for tackling the problem may be warranted.

Stephanie McKeon works as an employment expert in the Expert Advice team at Citizens Advice. John Donkersley, immigration expert in the Expert Advice team, also contributed to this article.

The information in this article is correct as of the date of publication.

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