The Home Office has made several changes that businesses sponsoring overseas workers should be aware of.
Amendments have been made to the Workers and Temporary Workers: guidance for sponsors part 2: sponsor a worker – general information (“general information guidance”) and the Workers and Temporary Workers: guidance for sponsors: sponsor a skilled worker (“skilled worker guidance”). This post provides an overview of some of the main changes.
Changing start dates
A individual can now start working in their sponsored employment as soon as they have permission to enter or stay in the UK, under paragraph S3.9 of the general information guidance. They no longer have to wait for the start date given on their Certificate of Sponsorship (CoS). There is no need to report the change on the SMS system if the start date has been brought forward after an individual has been granted permission to enter or remain in the UK.
But what about starting work after the start date on the CoS? The 28-day rule for sponsored workers is well known to us all. Sponsors previously had to stop sponsoring a worker and inform the Home Office via the SMS reporting system if the start date is delayed by more than 28 days from the start date on the CoS. If the worker’s visa is granted from a date after the start date on the CoS, then the 28-day countdown begins from that later date.
There has always been one exception to the 28-day rule. The old version of the general information guidance stated that “where the worker is required to work out a contractual notice period with their previous employer”, their start date can be delayed beyond 28 days. But that’s it. Robert Houchill discussed potential issues with the 28-day rule here.
The updated guidance confirms that there is no longer a need to report a delayed start date on the SMS system where the worker has already been granted permission, as long as the new start date is not delayed more than the standard 28-day period.
A concession has also been added that allows sponsors to continue to sponsor a migrant beyond the standard 28-day period where they have an acceptable reason to do so. Before the update, this was only allowed in circumstances where the worker’s previous employment’s exit process or notice period was delayed. There is no comprehensive list of acceptable reasons in the guidance and each case will be judged on its merits. However, the guidance does give some examples:
“Acceptable reasons for a delayed start may include:
- 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.”
The salary entered on a Defined CoS must genuinely reflect what the worker will be paid. Sponsors of skilled workers must therefore state the number of hours the individual will work each week in the “Summary of job description” text box, in the Defined CoS. This is confirmed in the skilled worker guidance, which states in the skilled worker guidance:
“If the working hours will vary, you must give details of what the working pattern will be. This will help us to confirm the stated salary meets the general threshold, going rate and hourly rate requirements. If you fail to give this information, we are likely to reject your application.
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. You will be able to enter the correct number of hours when you assign the CoS to a worker.”
Failure to provide the number of hours worked per week will likely result in the Home Office rejecting the Defined CoS.
The Home Office can also ask for extra information or documents for a Defined CoS. The Home Office will aim to consider them within 20 working days of their receipt; a significant length of time compared to the one or two days it usually takes for a defined certificate of sponsorship to be approved.
Concessions for extended absences without pay
A concession has been added to the general information guidance to allow the continued employment of a person who has been absent from work without pay for more than four weeks. That is, provided that there is a compelling and compassionate reason for their absence, but where none of the exceptions (for example, statutory maternity or sick leave) in paragraph S4.14 apply. The four weeks do not have to be consecutive. For skilled workers, the rule is four weeks in any calendar year.
Each case will be judged on its own merits. As always, this must be reported through the SMS system. The Home Office may cancel a worker’s permission to remain in the UK if they are not satisfied that there is a valid reason to continue to sponsor the worker where they have been on unpaid leave for more than four weeks.
Including allowances in a salary
Several updates reflecting the Statement of Changes HC 719 have been confirmed in the guidance, now that the changes have come into force (as of 9 November 2022). In particular, the skilled worker guidance confirms that only guaranteed basic gross pay should be included in the salary section of the CoS.
Other allowances, pay or benefits (even if guaranteed) will no longer be considered when assessing a worker’s level of pay. For example, pensions, shift allowances, accommodation, or cost of living allowances should not be included in the gross salary on the certificate of sponsorship.
Some transitional provisions are in place for applications made for permission to stay or indefinite leave to remain until 1 December 2026. The guidance confirms that:
“you may include guaranteed allowances in the salary figure entered on the worker’s CoS if all of 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 exemption from paying the Immigration Skills Charge is also due to come into force on 1 January 2023, subject to parliamentary approval of the Immigration Skills Charge (Amendment) Regulations 2022. It has already been included in the general information guidance.
Some of the updates provide a welcome break from extensive SMS reporting and are perhaps a reflection of an overwhelmed Home Office team, apparently inundated with new sponsor licence applications, as well as their other duties. The changes also usefully acknowledge that there are no long-term adverse effects to sponsors, workers, or the immigration system from relaxing the strict 28-day rule. However, sponsors should continue to read and regularly refer the guidance documents. Be aware that short additions have been included which, for example, confirm that compliance action can be taken against those who provide misleading information about the skill level of a job.
Read the full article here