Update on Sponsor Guidance for Skilled & Temporary Workers

These changes affect reporting obligations and migrant deadlines relating to work start dates, extended absences from work without pay, salary reductions and the Immigration Skills Charge (ISC). There are also clarifications regarding a migrant’s change of employment, reporting, the ISC exemption and salary.

Start dates

The latest updates in the Sponsor Guidance for Workers and Temporary Workers regarding start dates include a reduction in the reporting duties and more flexibility around when a migrant can commence working in the UK.

In regard to reporting requirements, sponsors no longer need to report if a migrant’s start date is brought forward compared to the date listed on the Certificate of Sponsorship (CoS), as long as it is after the initial grant of immigration permission. Additionally, there is no longer a need to report a change to the start date when the migrant has been granted permission, and the date is delayed by no more than 28 days (outlined further below).

A migrant can commence work in their sponsored employment as soon as they have permission to enter or stay in the UK, even if this occurs before the start date recorded on their CoS. Once a migrant has been granted immigration permission, they should generally start working in their sponsored employment no later than 28 days. Further flexibility has been added to this provision, as the 28 days can now be counted from whichever is the latest of the following:

• the start date on their CoS (taking into account any changes to that date reported by the sponsor before their application for entry clearance or permission to stay was granted);
• the ‘valid from’ date on their entry clearance vignette (ie visa sticker in passport);
• the date they are granted permission to enter if they entered the UK without entry clearance under the Creative Worker visa concession; or
• the date they are notified of a grant of entry clearance or permission to stay – this wording has been changed from the date that the worker was granted entry clearance or permission to stay.

Where a migrant is unable to start work by the end of the 28-day period described above,  the sponsor must report one of the following on the Sponsorship Management System (SMS):

• the worker’s new start date and the reasons for the delayed start, if the company wishes to continue sponsoring them; or
• the company has ceased sponsoring the worker.

Previously, where the delay to a work start date was longer than 28 days, the only available concession was if the migrant was required to work out a contractual notice period for their previous employer. The Sponsor Guidance now extends the concession to include the following ‘acceptable reasons’:

• travel disruption due to a natural disaster, military conflict, or pandemic;
• the migrant requires an exit visa from their home country and there have been administrative delays in processing this permission;
• illness, bereavement, or other compelling family or personal circumstances.

The Sponsor Guidance highlights that this list is not exhaustive and each case ‘will be judged on its merits’. Whilst it is undoubtedly a positive development for the concession to have been expanded, giving both employers and migrants greater flexibility on the deadline when the worker must start working in the UK, this provision could potentially prove to be problematic, as no prior approval can be sought from the Home Office for what constitutes an ‘acceptable reason’. The Sponsor Guidance goes on to state that ‘UKVI may cancel the worker’s permission if they do not consider that there is a valid reason for a delayed start.’ This could potentially result in migrants having their leave curtailed or cancelled on short notice, or encountering issues at port when attempting to re-enter the UK with permission that they did not realise had been cancelled.

Extended absences from work without pay

The Sponsor Guidance has expanded provisions for extended absences from work without pay. Beyond the existing statutory exceptions (such as maternity leave), where a migrant can be absent from work without pay for more than four weeks, a further concession has been added: sponsors may continue employing a migrant absent for an extended period of over four weeks where there are ‘compelling and compassionate circumstances’. As with other extended absences, this must be reported on the SMS by the sponsor. Once again, no prior approval can be sought from the Home Office, so although this change potentially allows greater flexibility, it could also be problematic for migrants who have their leave curtailed or cancelled if the Home Office decides not to accept their ‘compelling and compassionate’ justification.

Salary reduction

There are existing reasons why licensed sponsors may continue sponsoring a migrant whose salary has been reduced (such as maternity leave). Now, a further concession has been added for Skilled Workers who have experienced health problems (which needs to be reported on the SMS as with other similar changes). A salary reduction is permitted if it coincides with a temporary reduction in the worker’s hours, or a phased return to work, for personal health reasons, provided that:

• this is supported by an occupational health assessment; and
• the reduction does not result in the hourly rate falling below any hourly rate requirement which applied when the person obtained their most recent grant of permission.

Immigration Skills Charge

A new exemption has been added for those who are not required to pay the ISC (although note this remains subject to parliamentary approval). The ISC exemption applies to a Senior or Specialist Worker if all the following requirements are met:

• the sponsor assigns the CoS on or after Sunday 1 January 2023;
• the migrant is a national or an EU country or is a Latvian non-citizen – this concession does not apply if the worker is a national of Iceland, Norway, Liechtenstein, or Switzerland;
• the migrant has been relocated to the UK by a business established in the EU which forms part of the same ‘sponsor group’; and
• the end date on the CoS is no more than 36 months after the CoS start date (approximately three years).

This is another welcome change that is particularly likely to benefit EU nationals coming to the UK on short-term assignments.

Further clarifications

The Sponsor Guidance has been updated to include confirmation that all migrants with an approved Change of Employment application must undergo a new right-to-work check before they can commence employment in the new role, including  where they are continuing to work for the same sponsor.

Detailed clarifications around reporting have also been added, including that if a start or end date has changed before a migrant applies for entry clearance or permission to stay, the employer should use a sponsor note on the CoS to notify the Home Office, whereas if the change occurs after an application has been submitted these should be reported via the SMS instead.

The Sponsor Guidance clarifies that the ISC exemption for those migrants switching from  Student to Skilled Worker does not require them to be a graduate but must have current immigration permission for the purpose of study.

Updates confirm that ‘[w]here the going rate for a specific occupation is increased, this does not affect Skilled Workers you are already sponsoring in that occupation for the duration of their current permission. The updated rate will apply to any application for entry clearance or permission to stay made on or after the date the change comes into effect’. In relation to Defined CoS applications, additional text on the salary information box states, ‘[i]f the working hours will vary, you must give details of what the working pattern will be.’ If working hours information is not provided or the Home Office has good reason to believe that the role does not comply with UK employment laws such as minimum wage, the application will likely lead to refusal. Finally, sponsors must ensure that any worker sponsored on this route will be paid in line with UK national minimum wage legislation. If a migrant is exempt from being paid National Minimum Wage, the sponsor must explain this when assigning the CoS – either in the allowances box or through a sponsor note after the CoS has been assigned.

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