New reporting duties have come into effect after the Home Office made extensive updates to its compliance guidance (part 3 of the sponsor guidance) on 31 March. These relate to:
- Knowledge or suspicion that a worker has breached their conditions of stay
- Those who are absent from work on reduced pay, and those on unpaid leave of more than 4 weeks
- Hybrid and remote working patterns
Here’s a breakdown of some of the key changes:
Work Location
There’s now a duty to report where a worker’s “normal work location” changes, including where:
- the worker is, or will be, working at a different site, branch or office of your organisation, or a different client’s site, not previously declared to the Home Office
- the worker is, or will be, working remotely from home on a permanent or full-time basis (with little or no requirement to physically attend a workplace)
- the worker has moved, or will be moving, to a hybrid working pattern
A “hybrid working pattern” is where the worker will work remotely on a regular and planned basis from their home or another address, such as a work hub space, that is not a client site or an address listed on your licence, in addition to regularly attending one or more of your offices or branches, or a client site.
The guidance confirms that it is not necessary to report day-to-day changes in work location (for example, if a worker occasionally works at a different branch or site, or from home). Only changes to regular working patterns need to be reported.
In line with the new way of working, it appears the Home Office is taking a more generous approach than it has previously. We are seeking clarification on this from the policy team. The SMS and other systems will also need to adapt accordingly.
Top tips:
- Conduct a review of all of your current sponsored workers’ work locations (and those with pending applications). If they work remotely, is this in line with your internal policies?
- Liaise with the sponsored workers and/or their line managers to assess their regular working patterns.
- Consider if reports of regular working patterns need to be submitted to the Home Office.
- Diarise review dates of sponsored workers’ working patterns, to ensure that changes are picked up promptly.
- Update internal policy documents / flow charts to reflect this change in guidance – this can form part of your internal training.
Duty to report immigration breaches
There’s a new duty to report as soon as reasonably practicable “if you know or suspect a worker you are sponsoring has breached their conditions of stay”. This includes, for example, changes to a sponsored worker’s role that take it outside of the original occupation code stated on their Certificate of Sponsorship (CoS), and a change of employment application has not been made.
Top tip: It’s now even more critical to monitor role changes going forward, and to get advice urgently where these scenarios arise.
Unpaid Leave
There are two important changes to the duties around unpaid leave:
- The 4 week absence limit now also applies to those absent on reduced pay
As before, where a worker has been absent without pay for more than 4 weeks in total in any calendar year, and no exception applies (for example absence due to sick leave or parental leave), sponsorship must cease and this must be reported, except where:
- an exception applies; or
- there are compelling or exceptional circumstances
This now also applies to those who are absent from work on reduced pay – rather than just without pay – for more than 4 weeks. This may therefore capture those who wish to take a sabbatical, where sponsors may be willing to pay a reduced or notional salary.
Valid exceptions include absence due to statutory maternity, paternity, parental, shared parental or adoption leave; sick leave, assisting with a national or international humanitarian or environmental crisis (provided you agreed to the absence for that purpose); taking part in legally organised industrial action; and as of 12 April, jury service and attending court as a witness.
Where sponsors feel that compelling or exceptional circumstances mean they should not stop sponsoring a worker who is absent without pay, or on reduced pay, for more than 4 weeks, these circumstances must be reported. The Home Office will then consider the report, and can still cancel the worker’s permission where they are not satisfied the reason given is valid.
2. There’s a duty to report absence of more than 4 weeks with reduced or no pay, where an exception applies
As well as bringing into scope those who are absent on reduced pay, there’s now also a duty to report where “a sponsored worker is absent from work without pay, or on reduced pay, for more than 4 weeks in total in any calendar year (or during the period you are sponsoring them if they are a Scale-up Worker) and a valid exception applies”. Previously there was no duty to report such absences where they fell within the permitted exceptions.
By way of reminder, the 4 week limit referred to above is cumulative, applying across the calendar year, and is calculated according to the worker’s usual working pattern.
Top tip: It’s important to monitor and record absences even more closely now, and ensure that internal systems are updated to capture all reportable absences in a timely way.
In addition to the above there have also been some more minor updates, including to the organisational changes that must be reported.
If you have any questions in respect of these latest changes, please don’t hesitate to reach out to us.