Changes to the guidance on sponsoring migrant workers: What do employers need to know?

The Home Office recently made several changes to the guidance on sponsoring migrant workers. Overall, these are positive changes for sponsors, by reducing the reporting trigger points and building in much needed flexibility where a worker is off work for compelling reasons.

Changes have been made to suit a post-pandemic world. As a result of these changes, we see greater compassion regarding unpaid leave for sponsored workers and a more pragmatic approach to delayed start dates.

We summarise the key updates below:

Greater flexibility on start dates

• Workers no longer have to wait for the start date on the CoS – they can begin working as soon as they have permission to enter without the need for a report to be made on the Sponsor Management System (SMS).

• You no longer need to report start dates delayed by less than 28 days.

• Workers should start sponsored employment no later than 28 days after whichever is the latest of:
  • the start date on the CoS;
  • the ‘valid from’ date on the entry visa vignette;
  • *NEW* the date the worker is notified of a grant of entry clearance or permission to stay;
  • for those under the Creative Worker concession, the date the worker is granted permission to enter

• When a start date is delayed by more than 28 days, you do not necessarily have to stop sponsoring the worker. You must report the delay to the Home Office via the SMS and provide reasons for the delay.  The Home Office will decide each case on its merits and will cancel permission if they do not consider there to be a valid reason for the delayed start. Examples of valid reasons include travel disruption due to a natural disaster or military conflict; contractual notices for previous employers; delays with obtaining an exit visa; and illness, bereavement or other compelling personal circumstances. You must ensure to carry out a right to work check before the worker starts employment. Further advice should be obtained if the start date is delayed by more than 28 days.

You must provide detail on working hours when applying for a defined CoS

• This information helps the Home Office assess that the salary threshold has been met – failure to provide this information will likely result in a rejected application. It is hoped this will significantly reduce the requests for further information made by the Home Office and in turn reduce the processing times for these requests.
• For example, if working hours will vary, you must give details of what the working pattern will be.
• Or if working hours are subject to negotiation, you should state the typically expected weekly working hours and enter “to be confirmed”. You should then enter the correct working hours when the CoS is assigned to the worker.

Unpaid leave

• Typically, you must stop sponsoring a worker who is absent from work without pay for more than 4 weeks in any calendar year, unless it is for a permissible absence as listed in Home Office guidance (e.g. sick leave, statutory maternity leave).
• The Home Office has introduced a new exception to this – where there are ‘compelling or exceptional circumstances’ to keep sponsoring the worker.
• You must report the absence and reasons via the ‘Report migrant activity’ function in the SMS. The Home Office may cancel the worker’s permission if they are not satisfied there is a valid reason for continuing to sponsor the worker, in which case you must stop sponsoring the worker.

Clarity on what constitutes the ‘salary’ under Skilled Worker

• In addition to guaranteed basic gross pay, salary can also include other guaranteed payments which are treated exactly the same as basic gross pay for tax, pension and national insurance purposes.

New exemption to the Immigration Skills Charge (subject to parliamentary approval)

• Subject to parliamentary approval, from 1 January 2023, there will be a new exemption to paying the Immigration Skills Charge, specifically for Senior or Specialist Workers assigned to the UK by an EU company for no more than 36 months.

Right to Work checks and ‘change of employment’ applications

• If a worker has made a ‘change of employment’ application, you must conduct the Right to Work check before they can start their new employment.

What should employers do now?

• Read through the changes and ensure all internal processes are fully updated.
• If you are in the process of a change of employment application, ensure you diarise to undertake a new Right to Work check before they can start their new employment.
• Get in touch if you have follow-up queries.