The Home Office has updated the Sponsor Guidance on Workers and Temporary Workers on 9 November 2022. The guidance contains important information about obligations and compliance processes for UK sponsor licence holders. Changes include new concessions for sponsors and sponsored employees related to delays in start dates and unpaid leave.
Start date changes
Previously, where the sponsored employee was for any reason (including delays in UK visa application process) unable to meet the original employment start date, this had to be reported to the UKVI. UK sponsor licence holders were only able to delay the start date by a maximum of 28 days from one of the following dates, whichever was the latest:
- Original start date on the Certificate of Sponsorship or any other changes via SMS to it before the UK visa is approved, or
- Date the employee's UK visa was approved and/or becomes valid.
Updated guidance now confirms that so long as the employee has started employment within a 28 day period, no report is required on the SMS. This is a significant relaxation of the reporting responsibilities for the sponsors.
Additionally, the guidance allows for a new way (in addition to the existing two provisions above) on how to calculate the start of the 28 day period. This is:
- Date the worker is notified of a grant of entry clearance or permission to stay.
Taking into consideration significant delays in UK visa processing and delays at the Visa Application Centres worldwide in return of the passports to the applicants, this is a welcome change.
More significantly, where previously it was not possible to delay the start date by more than 28 days, it is now possible to do so under certain circumstances. 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
- 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 UKVI states that this is not a comprehensive list and each case will be judged on its merits. The report must be made on SMS to report a delay of over 28 days with the reasons for the delay. The UKVI retains a right to cancel the worker's visa if they do not consider the reason for a delay valid. Therefore, the employers must always ensure they complete a repeat right to work check after the report is submitted and before their new start date of employment to ensure the employee continues to have the relevant visa.
Changes to unpaid leave provisions
Previously, sponsored workers could not take more than 4 weeks of unpaid leave in any calendar year, unless there was an exemption such as maternity, paternity leave, sick leave etc. If they wanted to take a period of unpaid leave longer than 4 weeks, the sponsor was obliged to stop sponsoring the employee and a new visa would be required.
New version of the guidance now allows sponsored employees to have periods of unpaid leave of over 4 weeks, where there are "compelling or exceptional circumstances" for this. This would need to be reported to the UKVI via SMS portal where the UKVI can consider if the reasons for such period of unpaid leave are satisfactory.
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.