Guidance updates for Sponsors brings new concessions and a change to the SMS reporting system

Recent changes made by the Home Office means businesses sponsoring overseas workers may be affected. These changes reflect the start dates, working hours and pay of a migrant worker. Read below to see how these changes may affect your business and how you operate your sponsorship license.

Subject to paragraph S3.9 of the general information guidance, an migrant worker is now able to begin working in their sponsored employment as soon as they have permission to enter or stay in the UK. This abolishes the requirement of having to wait for the start date provided on their Certificate of Sponsorship (“CoS”). Additionally, there is now no need to report via the current SMS system if the start date has been brought forward after the individual has been granted permission to enter, or remain in the UK.

What happens if I start working after the start date on the CoS?

Previously, Sponsors had a duty to inform the Home Office via the SMS reporting system of their intention to end sponsorship where the start date was delayed by longer than 28 days from the date on the CoS.

Where an individual’s visa is granted from a date after the start date on their CoS, the 28 days begin from the granted date. The exception to this rule was previously found under the older general information guidance which stated: “where the worker is required to work out a contractual notice period with their previous employer”, it is possible for the worker’s start state to be delayed beyond 28 days.

Now, the updated guidance confirms there is no longer a need to report a delayed start date via the SMS system in the case that a worker has been granted permission for the delayed start to their employment. This is permitted where the new start date is not delayed for a period of more than the usual 28 days.

Concession for start dates beyond the 28-day rule

A concession has been implemented into the guidance which provides for sponsors to continue sponsoring a migrant worker even after the 28 days on certain conditions. The guidance provides examples found under S3.14. Some of which are:

  • 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.

A further concession has been added to the general information guidance which allows the continued employment of a worker, who has been absent from work without pay, for a period of more than 4 weeks. The concession is only applicable where no exceptions under S4.14 apply yet there are compelling and compassionate reasons for the absence. The 4-week absence does not have to be consecutive and the rule is 4 weeks in any calendar year – for workers on a Skilled Worker visa or a Tier 2 migrant.

As usual, the absences will have to be reported via the SMS system and there is a risk of the Home Office cancelling a worker’s permission to remain in the UK if they are not satisfied of a valid reason. That being said, each case will be judged on its own merits as there is no set ruling for every case.

Specifying working hours in a Defined CoS

Salaries which are entered into on a Defined CoS must sincerely reflect what the worker will be paid. It is therefore imperative that Sponsors of skilled workers or a Tier 2 migrant specify the number of hours the worker will partake in the “summary of job description” section in the Defined CoS, as confirmed in the skilled worker guidance under SK12.12. A failure to provide the number of hours worked per week may result in the Home Office rejecting the Defined CoS.

The Statement of Changes HC 719 has led to numerous updates being confirmed in the guidance. As of 9 November 2022, those changes have come into force. Specifically, the skilled worker guidance contains updates which confirms that only guaranteed basic gross pay is able to be included in the salary section of the CoS. Further allowances such as pay or benefits will no longer be considered when assessing the level of pay of a worker i.e. pensions, accommodation or cost of living allowances are not to be included in the gross salary on the certificate of sponsorship.

What if my application for permission to stay / Indefinite Leave to Remain (“ILR”) has already been made?

Transitional provisions have been put into place for application made for permission to stay or ILR until 1 December 2026. SK7.4 of the skilled worker guidance provides that Sponsors may include guaranteed allowances in the salary figure entered on the worker’s CoS where all the following conditions are met:

  • The worker was previously granted permission as a Tier 2 (General) Migrant and has had continuous permission as a Skilled Worker or Tier 2 (General) Migrant ever since,
  • You sponsored the application which led to the worker’s last grant of permission and you are continuing to sponsor the worker; and
  • The allowances are guaranteed, will be paid for the duration of the worker’s permission, and would be paid to a local settled worker in similar circumstances, such as London weighting.

A new concession from paying Immigration Skills Charge will come into force on 1 January 2023 and has already been included in S5 of the general information guidance.

The changes have brought forward a relief from the extensive SMS reporting system which has shown an indication of the overwhelmed Home Office team and its attempt to reduce the load on the system by promoting efficiency through relaxing the strict 28-day rule. The changes also mean that Sponsors should actively read the guidance documents and implement the updates so as to not fall behind with the changing system.

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Authored by Tehreem Fatima, Paralegal

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