The Home Office released updated sponsor guidance on 9 November 2022, in line with the Autumn Immigration Rule updates. This includes some potentially helpful changes for sponsors of workers, however there are some areas of ambiguity as well as some upcoming changes that sponsors should be aware of.
The guidance updates are contained in Workers and Temporary Workers: guidance for sponsors part 2: sponsor a worker and Workers and Temporary Workers: sponsor a Skilled Worker.
Sponsored workers with an early start date
A sponsor does not need to make a report on the Sponsor Management System (SMS) if they start work once their immigration permission is granted, but before the start date recorded on their Certificate of Sponsorship (CoS). The Home Office had previously confirmed this to individual immigration advisers, but it had not yet been incorporated into the guidance.
Sponsored workers with a delayed start date
The updated guidance confirms that a delayed start date does not need to be reported, provided this is within 28 days of the start date recorded on the worker's CoS, or the date their immigration permission was granted (whichever is later).
A provision is introduced for the situation where a worker's start date is pushed back beyond this 28-day period. It is now possible for a sponsor to continue to sponsor such a worker, provided the sponsor reports this on the SMS and the Home Office considers there to be 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;
- A requirement for the worker to work out a contractual notice period for their previous employer (and assuming, if they are in the UK, that work was lawful);
- The worker experiencing delays in obtaining an exit visa for their home country; and
- Illness, bereavement or other compelling family or person.
There is risk to a sponsor in using this procedure, as it is possible the worker's immigration permission could be cancelled if the Home Office considers the reason to be unacceptable. Sponsors should therefore be careful to state the reason clearly in the report and consider taking advice on whether the Home Office is likely to consider it valid.
Requirements for defined Certificate of Sponsorship
When applying for a defined CoS (dCoS) under the Skilled Worker route, a sponsor must now include the number of hours a week the Skilled Worker will be working. If the hours will vary, details of the working pattern must also be given. Because the SMS has not been updated to include a separate field for this, the sponsor must put this information in the 'summary of job description' box, otherwise the application could be rejected.
A sponsor is allowed to include a typical estimate of the working hours for the role when requesting a defined CoS, along with '(to be confirmed)' or similar wording. The sponsor must then confirm the exact hours once these have been agreed with the worker and the CoS is assigned.
It is possible (but not a requirement) for the Home Office to request further information to consider a dCoS request. The guidance update confirms that if this happens, the Home Office will aim to decide the application within 20 working days of receiving the information. This is a helpful development, as no service standard was previously available. Some recent dCoS applications have taken many weeks to resolve, so it is unclear whether this timeline will be achieved in practice
Payment of sponsored workers
The guidance now clarifies that a sponsored worker must be paid into their own bank account. It is acceptable for that account to be in the UK or overseas. Paying onto a pre-paid card such as FOREX is acceptable, provided there is evidence this has been credited onto the worker's specific card.
Absence of a sponsored worker without pay or on reduced pay
Subject to limited exceptions set out at paragraph 9.30.1. of the Immigration Rules, a sponsored worker may have their immigration permission cancelled if they are absent from work without pay, or on reduced pay, for more than four weeks in any calendar year.
The usual position is that unless an exception applies, a sponsor is expected to stop sponsoring the person and to notify this on the SMS. The new guidance states however that if a sponsor believes there are compelling or exceptional circumstances that make it appropriate for the sponsorship to continue, the sponsor can report the absence and the reasons for this on the SMS. The sponsor should be aware that the permission may still be cancelled if the Home Office does not find the reasons valid.
Exemption from Immigration Skills Charge for certain Senior or Specialist Workers
The guidance confirms that (subject to approval of draft regulations), Senior or Specialist Workers will be exempt from the Immigration Skills Charge if all the following apply:
- The CoS is assigned on or after 1 January 2023;
- The worker is a national of an EU country or a Latvian non-citizen (note that nationals of Iceland, Norway, Liechtenstein and Switzerland are excluded);
- The worker is being assigned to the sponsoring UK business by an EU-based business within the same group; and
- The assignment is for no more than 36 months, as confirmed by the CoS start and end dates.
Sponsor notes on CoS
The new guidance reinstates and expands on previously withdrawn guidance covering when a sponsor note can be used on a CoS.
A sponsor note can be used to for the following:
- Amending the start and end dates of the CoS;
- Amending the salary and working hours for the job (provided the minimum salary threshold is still met);
- Correcting a mistyped name or date of birth (but note that more than one personal details 'minor error') requires a new CoS to be assigned); and
- Explanations, e.g. if the applicant is applying for the Health & Care visa.
A new CoS must be assigned if:
- The incorrect SOC code has been entered;
- The incorrect immigration route or subcategory has been selected; and/or
- More than one error has been made on nationality, date of birth or surname.
Increase in National Minimum Wage from 1 April 2023
Sponsors of workers must meet UK legal obligations, which include paying at least the National Minimum Wage (NMW) where this is a requirement.
The Government recently announced that from 1 April 2023, the NMW for 21-22 year-olds will increase by £1, to £10.18. This is above the current minimum hourly rate for the Skilled Worker route, which is £10.10.
It remains to be seen whether the Home Office will increase the minimum hourly rate for Skilled Workers, however the likelihood of this seems high. Although employers will be required to comply with the new NMW in any event, with inflation running at 9.6% in the 12 months to October 2022, adjustments to salary thresholds for sponsored employment would ensure migrant workers are not lower-paid than the rest of the workforce. Sponsors should be aware of this possibility when planning their recruitment budgets for sponsored workers.
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.