In June 2022 we published an article about the troublesome '28 days rule' requiring migrant Skilled Workers to start work in the UK within 28 days of whichever was later: the date their visa was granted, the start date stated on their visa or the work start date stated on their COS. There was only one exception to this rule, allowing delay beyond the 28 days when migrant worker had to work their contractual notice at their previous employer.

We now have some good news to share with our readers, as on the 9th November 2022 Home Office published their new sponsor guidance relaxing the 28 days rule. The 28 day rule still exists, however, the new guidance offers some flexibility allowing for more exceptions to the rule, and it even gives assurance that each case will be assessed individually on its merits.

WHAT ARE THE RECENT CHANGES TO THE 28 DAYS RULE FOR SKILLED WORKERS

The new Home Office guidance now states that once a worker has been granted their immigration permit, they should normally start working in their 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 you before their application for entry clearance or permission was decided)
  • the "valid from" date on the worker's entry clearance vignette (visa)
  • the date the worker is granted permission to enter, if they entered the UK without entry clearance under the Creative Worker visa concession
  • the date the worker is notified of a grant of entry clearance or permission to stay.

The new Home Office guidance gives two options to sponsor employer whose migrant worker's start date was delayed beyond the 28 days. If such delay occurs, sponsor employer must either:

  • tell Home Office the worker's new start date and the reasons for the delayed start, if you wish to continue sponsoring them; or
  • stop sponsoring the worker.

The report has to be made via the sponsor's Sponsor Management System (SMS) by the end of 10 working days after the 28-day period.

Warning note from Home Office (UKVI) to sponsor employers: If a sponsor employer wishes to continue sponsoring their migrant worker whose start date was delayed beyond the 28 days, they should be aware that Home Office (UKVI) may cancel the worker's permission if they do not consider there is a valid reason for the delayed start.

As can be seen from the above, there is still a degree of uncertainty for sponsor employer and the migrant worker as to whether Home Office will accept the reason given for the delay when it is reported via SMS. This will be particularly unpredictable if the reason does not fall under any of the exceptions listed as examples in the Home Office guidance. As usual in such situations, what employers can do is to present their best case with logical explanation for the delay.

Furthermore, from the Home Office guidance it seems it is the migrant worker who will be informed of their immigration permit being cancelled and it will be the migrant worker who has to then inform their sponsor. Sponsor employer must then stop sponsoring their migrant worker and has to report this within 10 working days via sponsor's SMS account.

The new Home Office guidance lists some examples of what Home Office may consider as 'Acceptable reasons' for a delayed work start date. What is more, Home Office also states that this is not a comprehensive list, and each case will be judged on its merits. Home Office gives the following examples:

  • 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.

SOME OTHER CLARIFICATIONS FOR WORK START DATE

The new Home Office guidance clarifies that sponsor employers do not have to report a change to start date (where the worker has been granted permission) if the start date is delayed by no more than 28 days.

The new guidance also states that a worker can start working in their sponsored employment as soon as they have permission to enter or stay in the UK, even if this is before the start date recorded on their CoS.

Finally, sponsor employers do not have to tell Home Office if the worker's start date has been brought forward after they have been granted permission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.