In mid-November 2022, the Home Office updated their Sponsor Guidance for workers and temporary worker migrants – whilst many of the changes appear minor, they are important for sponsoring employers to take note of, as they impact reporting duties.
The main changes are as follows:
Generally speaking, sponsored workers can usually start in the position of employment once immigration permission to enter or stay has been granted, and this should be within 28 days of the permission being granted.
The changes introduced include:
- There is no longer a need to report if a sponsored worker is starting after the permission date (previously had to report within ten working days and if the delay was more than 28 days, then the sponsorship must be stopped)
- There is no longer a requirement to report if the start date is delayed by less than 28 days as determined on the Certificate of Sponsorship (CoS)
- If the start date is more than 28 days after the start date on the CoS, so long as the start date is reported and ‘acceptable reasons’ are provided, then employers can continue to employ such individuals. It is possible, however, to have a visa cancelled if the Home Office does not accept the reason provided. The Home Office Guidance provides non-exhaustive examples of such ‘acceptable reasons’:
- Travel disruptions due to natural disasters, military conflict, or pandemic
- Working out a contractual notice period
- Illness, bereavement, or another compelling family/personal circumstance
- Requiring an exit visa from a home country has met with administrative delays
- The Home Office has also introduced greater flexibility with respect to the counting of the 28 days – now the 28 days can be counted from whichever is the latest of:
- The start date on the CoS (taking into account any changes to that date reported by the sponsor before their application for permission to enter or stay was granted)
- The ‘valid from’ date on the entry clearance sticker as endorsed into the passport)
- The date the worker is granted permission to enter if they entered the UK without a visa under the Creative Worker visa concession with a Creative Worker CoS)
- The date the worker is notified of the grant of permission to enter or stay – this wording has been changed from the date that the worker was granted entry clearance or permission to stay
This is a positive development and will benefit both employers and workers alike – providing flexibility on start dates in the UK.
Caution, however, must be exercised in terms of what constitutes an ‘acceptable reason’, and the Home Office will not give prior approval or indication if a reason is deemed to meet the threshold. In turn, this has a potential impact on both a business and any individual worker who unbeknownst to them has their permission curtailed or cancelled (which could be all the more fraught if denied entry on return to the UK).
- Where a start or end date change has been reported:
- If the report occurs before the worker applies for immigration permission, then the change should be reported on the CoS via a Sponsor Note
- If the change occurs after a permission application is submitted or permission is granted then the Sponsor Note must be made via the Sponsorship Management System (SMS)
Extended absences (greater than four weeks) from work without pay
Where there are (as yet no stated/defined) ‘compelling and compassionate circumstances’, it will remain possible for such individuals to continue to be employed, so long as this is reported on the Sponsorship Management System (SMS).
The Home Office will not give prior approval or indication as to what constitutes a ‘compelling and compassionate circumstance’.
Again, as with the changes to the start date provisions, this is both a welcome change as well as a potential worry if workers have their permissions of leave curtailed or cancelled if the Home Office considers that the ‘compelling and compassionate’ threshold is not met.
- In certain circumstances, it is possible for a sponsoring employer to continue employing a worker whose salary has been reduced, for example, due to maternity leave
- In the updated guidance, further consideration is now included for Skilled Workers who have experienced health issues – which must have been reported on the SMS – and salary reductions are allowed if, at the same time, there has been a reduction in hours and/or a phased return to work
- Reductions in salary will only be permitted if they:
- Do not result in the hourly rate falling below the Standard Occupational Classification (SOC) hourly rate, which was applicable at the time the immigration permission was granted
- Is accompanied by an occupational health assessment
Changes in employment/Right to Work Checks
Employers should be undertaking Right to Work (RTW) Checks on all employees at all stages of their employment. The guidance has now been updated to include a requirement that all workers with an approved Change of Employment application must now undergo a new RTW Check before they can commence employment in the new role, including where they are continuing to work for the same sponsor.
Immigration Skills Charge (ISC)
Another welcome change is the new exemption from paying the ISC for Senior or Specialist Workers where all of the following criteria are met:
- The CoS is assigned on or after Sunday 1 January 2023
- The migrant is an EU national or is a Latvian non-citizen
- The migrant has been relocated to the UK by a business established in the EU which forms part of the same ‘sponsor group’
- The CoS is assigned for no more than 36 months
The existing exemption for sponsors to not have to pay the ISC for workers switching from a Student visa to a Skilled Worker visa has been clarified to confirm that the worker does not have to have graduated, but must have permission as a student
- Where a worker is sponsored under an SOC code and the hourly rate is increased, existing sponsored workers under the same code are unaffected
- For any Defined CoS being assigned, it is now necessary to indicate if working hours will vary, and thus what a working pattern will look like
- When assigning a Defined CoS (Skilled Workers outside the UK), sponsors must ensure the worker is being paid in line with the National Minimum Wage; if exempt this must be stated on the CoS, or after assignment on the SMS
These changes are a highly welcomed development in the drive to have the Home Office deliver services with greater transparency and less administrative burden being placed on employers. It is of interest that whilst the government continues to target net migration figures and seek to reduce them, the Home Office issued almost 249,000 work visas in the year ending September 2022, and the overhaul of the Points Based System continues.
Our Business Immigration team can offer expert advice in relation to the topics raised in this article. For more information on the services we provide, visit our webpage here.
This article is provided for information purposes only. The contents are valid on the date of publication and may be subject to change. Please see our legal notice here.