Practical changes in sponsorship – employers take note

The updated guidance confirms that sponsored workers can start working in their sponsored employment as soon as they have valid permission to enter or stay in the UK, even if this is before the start date recorded on their certificate of sponsorship (“CoS”). A sponsor does not have to inform the Home Office if the worker's start date has been brought forward after they have been granted permission.

Sponsors are also no longer required to notify the Home Office of delayed start dates for foreign nationals granted permission unless the delay is more than 28 days. If the delay is more than 28 days this must still be reported.

However, in both instances sponsors may still wish to report such delays to ensure a consistent record is maintained.

Once a visa permission has been granted an individual should normally be starting work in the sponsored employment no later than 28 days after whichever is the latest of:

 the start date on their CoS (taking into account any changes to that date reported by the sponsor before their application for entry clearance or permission was decided);

• the 'valid from' date on their entry clearance vignette (visa);
• the date they are granted permission to enter, if they entered the UK without entry clearance under what is termed the Creative Worker visa concession; or
• the date they are notified of a grant of entry clearance or permission to stay (this wording is changed from the date that the worker was granted entry clearance or permission).

Previous guidance stated that sponsorship must cease where the worker does not start within this 28-day period.

In April 2021 a concession was added to this position which provided that the 28-day period could be extended where the worker was required to work out a contractual notice period for their previous employer (if this was permitted by their current conditions of permission).

Under the new guidance this concession has been broadened – if a sponsor still wishes to sponsor the individual, they can report the new start date and the reasons for the delay. The Home Office have discretion to permit continued sponsorship if they accept there is a valid reason for the delay. Acceptable reasons include, but are not limited to:

• travel disruption due to a natural disaster, military conflict or pandemic
• the worker is required to work out a contractual notice period for their previous employer – if the worker is in the UK, their conditions of stay must allow them to do this
• the worker requires an exit visa from their home country and there have been administrative delays in processing this
• illness, bereavement or other compelling family or personal circumstances

This isn’t a comprehensive list and 'each case will be judged on its merits'. It is important to note that the Home Office may cancel the worker’s permission if they do not consider there is a valid reason for the delayed start. Given the subjective nature of this discretion, we recommend employers are cautious and take all reasonable steps to avoid delaying a start-date beyond 28 days as outlined above.

The likely reason for these changes is that the Home Office is seeking to reduce the administrative burdens for employers seeking to onboard sponsored employees.

The updated guidance now confirms that going forward, when applying for a Defined CoS (needed for out-of-country skilled worker visa applicants), in the ‘Summary of job description’ text box, you must state the number of hours the successful candidate, or candidates, will work each week. If the working hours will vary, you must give details of what the working pattern will be.

The Home Office will then review the confirmed hours to ensure the stated salary meets the general threshold, going rate and hourly rate requirements.

If the number of weekly hours is subject to negotiation or final agreement, you should enter the number of hours you would normally expect employees in a similar role to work each week and enter “to be confirmed” (or a similar phrase) in brackets.

It is vital that this isn’t overlooked as if you fail to provide this information then the application is likely to be refused. Hopefully in the near future there will be a separate box introduced to Defined CoS requests requesting the working hours so that it won’t be as easy for this information to be omitted.

Ordinarily sponsored migrants must have their sponsorship terminated where they have been absent without pay for more than four weeks in a calendar year (which can include cumulative absences) unless an exception applies. A concession has been added which permits the continued employment of such a person where none of the permitted exceptions apply and there are 'compelling and compassionate circumstances'.

Again, this must be reported on the sponsorship management system, and if the Home Office considers that there are not ‘compelling and compassionate circumstances' it may cancel the worker's permission. If this happens you will then need to cease sponsoring that individual.

The guidance now confirms that you do not have to stop sponsoring an individual where you have reduced their salary, and this means the salary requirements for the visa are no longer met, where the reduction is purely temporary and coincides with a temporary reduction in the worker’s hours, or a phased return to work, for individual health reasons.

However, there are two important caveats to note:

• this must be supported by an occupational health assessment; and
• the reduction must not result in the hourly rate falling below any hourly rate requirement which applied when the person obtained their most recent grant of permission.

There is now confirmation that all workers who have a change of employment application approved (i.e. including where they are continuing to work for the same sponsor but have moved into a role in a new SoC code) must be subject to a right to work check before they can start employment in the new role.

This won’t come as a surprise to many employers as they will have already been carrying out such checks. However, the guidance now confirms this is compulsory even where the sponsored migrant will be remaining with the same employer.

 Subject to parliamentary approval, effective 1 January 2023 UK employers will be exempt from paying the Immigration Skills Surcharge when sponsoring a Senior or Specialist worker, if all the below requirements are met:

• They are sponsoring an EU national (EU national is defined as a national of an EU country or a Latvian non-citizen although note this concession does not apply if the worker is a national of Iceland, Norway, Liechtenstein or Switzerland); and
• the worker has been assigned to the UK by a business established in the EU, and which forms part of the same “sponsor group”, as defined in Sponsor a Global Business Mobility Worker; and
• the end date of the assignment, as specified on the CoS, is no more than 36 months after the start date.

This will be a significant saving for sponsors looking to sponsor individuals that meet these criteria.

The guidance also now clearly confirms that the Home Office will only consider guaranteed basic gross pay when considering minimum salary requirements for this visa.

The guidance makes it clear that the Home Office will not take into account other allowances, pay or benefits (even if they are guaranteed), such as any of the following:

• pay which cannot be guaranteed because the nature of the job means that hours fluctuate;
• additional pay such as shift allowance, or overtime or bonus pay, whether or not it is guaranteed;
• employer pension and employer national insurance contributions;
• any allowances, such as accommodation or cost of living allowances;
• in-kind benefits, such as equity shares, health insurance, school or university fees, company cars or food;
• ·one-off payments, such as ‘golden hellos’;
• any payments relating to immigration costs, such as the application fee or Immigration Health Charge; or
• payments to cover business expenses, including (but not limited to) travel to and from the applicant’s home country, equipment, clothing, travel or subsistence.

Although there are some transitional provisions in place for allowances until 1 December 2026.

As a result, allowances must not be included when a sponsor enters the worker’s gross salary on their CoS. It should only be the basic gross pay figure that is detailed. If you include allowances, and a transitional provision does not apply, the Home Office may revoke your licence.