The Home Office has recently made some important changes to their sponsor guidance and to sponsor duties. Sponsors need to keep up to date to ensure they are meeting their sponsor obligations and are ready for any Home Office audit.
The key changes are set out below.
Changing start date – sponsored worker starting earlier than the certificate of sponsorship start date
Once the sponsored worker has obtained their permission to enter or stay in the UK, they can start in their UK role at any time from the date of the grant of their immigration permission and their start date can be earlier than the start date stated on their certificate of sponsorship. The guidance now makes it explicit that there is no requirement for the sponsor to make a notification where the individual starts the UK role earlier than the date stated on their certificate of sponsorship.
A note should be kept of the actual start date. Practically, HR teams need to ensure that the individual’s employment contract and/or any secondment letter and/or any variation or side letter is consistent with the actual start date. This documentation needs to be included on the sponsored worker’s compliance file and may be checked during any Home Office audit.
Changing start date – sponsored worker starting later than the certificate of sponsorship start date
There is now no requirement to make a sponsor notification where the start date is delayed by no more than 28 days from the start date stated on the certificate of sponsorship or from the date the sponsored worker’s visa or immigration permission was granted (if this was granted after the start date on the certificate of sponsorship).
If the sponsored worker’s start date is delayed by more than 28 days, sponsors must generally stop sponsoring the individual unless one of the exceptions applies. Until recently, the only exception was where the individual was required to work out a contractual notice period for their previous employer.
A concession has now been introduced in the guidance to enable sponsored workers to start more than 28 days after the start date stated on their certificate of sponsorship (or date of the visa or immigration permission if granted after the start date stated on the certificate of sponsorship) if there are acceptable reasons. There is no exhaustive list of what constitutes an acceptable reason but the guidance does include the following examples:
- Travel disruption due to a natural disaster, military conflict or pandemic,
- Illness, bereavement or other compelling family or personal circumstances or,
- The worker requires an exit visa from their home country and there have been administrative delays in processing this.
Sponsors must report the delay in start date within 10 working days from the end of the 28-day period. Sponsors also need to be aware that if UK Visas & Immigration do not consider there is a valid reason for continuing to sponsor the worker, it may cancel the sponsored worker’s immigration permission.
Sponsors need to keep a close eye on sponsored workers’ start dates. We still recommend ensuring that the sponsored worker starts work within the 28-day period, if at all possible. If this is not possible, we recommend keeping evidence of the acceptable reason for the delayed start date – this could be the individual’s previous employment contract showing their contractual notice period or medical reports/death certificates to show the illness/bereavement of a family member.
Unpaid leave
A further concession has been added to extend the circumstances when sponsored workers may take longer periods of unpaid leave.
The general rule is that sponsored workers may not take more than four weeks’ unpaid leave per calendar year (pro-rated for those who do not work full time). If the individual takes more than this amount, the sponsor must stop sponsoring them in the UK. Exceptions to the rule have previously included statutory maternity/paternity/parental or shared parental leave, statutory adoption leave, sick leave, taking part in legally organised industrial action and assisting with a national/international humanitarian/environmental crisis.
There is now a further exception which allows sponsors to continue sponsoring someone who takes more than four weeks’ unpaid leave where there are "compelling or exceptional circumstances" for doing so. Unhelpfully, there is no definition of what constitutes compelling/exceptional circumstances in the updated guidance but, taking a common sense approach, it is likely to include caring for a sick relative or bereavement-related leave. Again, the sponsor must report the unpaid leave and the reasons it has been taken.
HR should carefully consider any requests for unpaid leave from sponsored workers to ensure that taking unpaid leave does not jeopardise the individual’s sponsorship in the UK. For example, in our view, an unpaid sabbatical is unlikely to constitute compelling or exceptional circumstances.
Defined certificate of sponsorship requests
When requesting a defined certificate of sponsorship on the sponsor management system (usually for sponsored workers who are applying under the Skilled Worker route from overseas), the number of working hours per week must now be included as part of the job description summary in the request.
If the working hours are not included, the defined certificate of sponsorship request is likely to be refused.
It is important that Level 1 and Level 2 users who request the defined certificates of sponsorship are aware of this change to ensure there are no delays to the visa process.
Payment of salary
The updated guidance now explicitly states that all salary payments must be paid into the sponsored worker’s own bank account, either in the UK or overseas. The Home Office may check this during an audit. Sponsors may not pay their sponsored workers in cash and where this does happen, sponsors are likely to lose their sponsor licence altogether.
Where the sponsored worker is paid by cheque, this must be paid into the sponsored worker’s own bank account.
It’s advisable to check how you are currently paying your sponsored workers to ensure that it fully complies with the new guidance.
New immigration fee exemption
On a different note, there is an upcoming change to the immigration skills charge payment. This is the charge that the sponsor must pay for each year of the sponsored worker’s immigration permission and costs £1,000 per year for a medium/large company or £364 per year for a small company. The Home Office uses the accounting definition to define a small or medium company.
A new exemption to this charge is due to be introduced from 1 January 2023 and there will be no immigration skills charge payable for a Senior or Specialist Worker application (previously called Intra Company Transfer) where the individual sponsored worker is an EU national or Latvian national being assigned to the UK by a group company established in the EU. This exemption only applies where the individual is only coming to the UK for up to three years.
We anticipate that this new exemption may encourage more sponsors to use the Senior or Specialist Worker route (rather than the Skilled Worker route) when they are temporarily transferring EU nationals or Latvian nationals from an EU group company to the UK company.
Importantly, the EU business must already be added as a linked entity on the UK company’s sponsor licence and it is only possible to include entities which are linked by common ownership to the UK company. Sponsors need to be aware that requesting the addition of linked entities can take the Home Office up to 18 weeks to process.
Sponsors should therefore review their records to check if they should urgently be updating their overseas and UK linked entities on the sponsor licence. This means that they could then be in a position to take advantage of the fee exemption in 2023 for any future Senior/Specialist Worker applications involving EU nationals who are transferring to the UK company from an EU group company.
Kerry Garcia
Jackie Penlington