Home Office Guidance Update on Sponsor Duties and Compliance

In recent months, the Home Office has made some welcoming changes to their guidance for sponsors.

1. Changing start dates

A worker can now start working in their sponsored employment as soon as they have permission to enter or stay in the UK. They no longer need to wait for the start date given on their Certificate of Sponsorship (“CoS”).

As to pushing back a start date, employers are no longer required to report this via their Sponsorship Management System (“SMS”) online account if it is delayed by 28 days or less. Beyond that, there must be an acceptable reason to delay the start date.

“Acceptable reasons for 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.”

Each case will be decided on its own merits following your report to the Home Office via your SMS account. The Home Office may wish to request further information and/or documents before making a decision.

2. Working hours on a defined CoS

You must enter the worker’s salary and state their weekly working hours when applying for a defined CoS via your SMS account. This is required so that the Home Office can confirm that the salary threshold will be met.

The following note has helpfully been added to the ‘sponsor a skilled worker’ guidance for sponsors:-

“In the ‘Summary of job description’ text box, you must also state the number of hours the successful candidate, or candidates, will work each week. 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.”

You will ultimately need to assign the defined CoS to the worker so that they can apply for their Skilled Worker visa.

3. Extended absences without pay

You can now continue employing a worker who has been absent from work without pay for more than 4 weeks if there is a compelling and compassionate reason for their absence, which falls outside one of the exceptions already in place. The 4 weeks do not have to be consecutive and is per any calendar year for skilled workers.

Each case will be decided on its merits following your report to the Home Office via your SMS account. Again, the Home Office may request additional information and/or documents before making a decision and may decide to cancel the worker’s visa if they are not satisfied with the reason(s) given. You and your sponsored employee will need to be aware of the risk and consequences of this.

4. Guaranteed allowances and bonuses

You can no longer include guaranteed allowances and bonuses to meet the salary threshold. The Home Office will only consider guaranteed basic gross pay when assessing an application. Only guaranteed basic gross pay should therefore be included in the salary section of the CoS.

Transitional provisions are, however, in place until 1 December 2026:-

“If the worker is in the UK and is applying for permission to stay (or settlement), 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.”

5. Immigration Skills Charge (“ISC”)

As you know, sponsor employers usually need to pay the ISC when assigning a CoS to a worker under the Skilled Worker or Global Business Mobility – Senior or Specialist Worker visa category. The ISC cannot be passed to the worker through any means. The consequence of passing on the ISC to the worker includes the revocation of your sponsor licence, which may have serious adverse repercussions for your business and the employees you are currently sponsoring.

Since 1 January 2023, you are no longer required to pay the ISC when assigning a CoS to a Senior or Specialist Worker if all of the following apply:-

• the worker is a national of an EU country or is a Latvian non-citizen; – note that this does not apply if the worker is a national of Iceland, Norway, Liechtenstein or Switzerland
• the worker has been assigned to the UK by a business established in the EU and which forms part of the same “sponsor group”, i.e. the UK sponsor and the EU employer are linked by common ownership or control and have been recognised as such by the Home Office;
• the UK assignment is for no more than a 3-year period.

This exemption has been added to give effect to an international obligation contained in the EU-UK Trade and Cooperation Agreement.

As per before 1 January 2023, you are not required to pay the ISC to any of the following:-

• a worker who is applying for entry clearance from outside the UK for a period of fewer than 6 months;
• a worker who is being sponsored to work in any of the following occupations:-
  • chemical scientists (2111)
  • biological scientists and biochemists (2112)
  • physical scientists (2113)
  • social and humanities scientists (2114)
  • natural and social science professionals not elsewhere classified (2119)
  • research and development managers (2150)
  • higher education teaching professionals (2311)
  • clergy (2444)
  • sports players (3441)
  • sports coaches, instructors or officials (3442)
• a worker to whom you have previously assigned a CoS where:-
  • you assign them a new CoS to work for you; and
  • the new period of permission they are seeking will not exceed their current period of permission – if the application would result in a longer grant of permission, you must pay a charge for the additional period that would be granted, unless another exemption applies
• a worker who was assigned a CoS under Tier 2 (General) or Tier 2 (Intra-Company Transfer (“ICT”)) Long-term Staff before 6 April 2017 and:-
  • that CoS resulted in a grant of entry clearance or permission to stay;
  • the worker undertook the role for which that CoS was assigned; and
  • the worker has not since ceased to have permission under Skilled Worker (or its predecessor route, Tier 2 (General)) or Senior or Specialist Worker (or its predecessor routes, ICT, or the Long-term Staff sub-category of Tier 2 (ICT)).

As a sponsor employer, we hope you find the above changes useful. If you have any questions and/or wish to discuss, please contact our Head of Immigration Services on 01905 900914 or at patricia@bradleyhayneslaw.co.uk.

We look forward to hearing from you!