Education briefing - UK Immigration: Key changes to sponsor guidance made by Home Office

• United Kingdom

• Education - Briefings

17-11-2022

Institutions should be aware that the Home Office have made some important updates to the guidance for sponsors that impact on those sponsored under the Skilled Worker route in the UK.

 We have set out the key changes below that sponsors should be aware of: 

• Defined CoS – Working hours

When applying for a Defined CoS sponsors should now specify the hours of work per week (or the working pattern if the working hours vary) in the ‘summary of a job description’ text box on the Defined CoS request form. The Home Office will then consider the working hours alongside the salary to determine whether the general threshold, going rate and hourly rate requirements have been met before approving the Defined CoS.

The Home Office have not yet introduced a separate box on the Defined CoS application form to enter this information and therefore this not an obvious step on the form. As such it is important that sponsors do not overlook including this detail in the job description text. The Home Office have confirmed that the Defined CoS request may be rejected without this information.

• Start Date for sponsored workers

The updated guidance confirms that workers can now start working in their sponsored job role at any time after their permission to enter or stay becomes valid and they do not have to wait until their start date on the CoS. Although there is no specific requirement to report an earlier start date on the SMS if the start date has been brought forward after visa approval, sponsors may want to think about reporting this in the same way as a delayed start to maintain consistent records across the SMS and contracts contained on CoS packs.

After permission has been granted the worker must start work within 28 days of the later of:

• the start date on their CoS (including any sponsor note amending the start date before the application is decided);

• the valid from date on the workers entry clearance vignette (visa);

• the date the worker is notified of the grant of entry clearance or permission to stay.

Sponsorship must be withdrawn if the worker does not start within this 28 day period. There has historically been one exception to this where the worker is working subject to their notice period and in this case a sponsor may report a later start date via the Sponsor Management System (SMS). The Home Office has now introduced a new concession that there may be a compelling reason when sponsorship may not be ceased if a worker does not start within this 28 day period. Examples of a compelling reasons include a natural disaster, pandemic, exit visa needed from the home country, illness, bereavement or other “compelling personal circumstances”). Although, it should be noted that the UKVI may cancel the workers permission if they do not believe there is a compelling reason following the report made through the SMS.

 • New concession regarding unpaid absences from work

Following the recent change that a worker’s pay can be reduced if they have a temporary reduction to hours as a result of health concerns which are supported by an Occupational Health Assessment the Home Office have added a new concession that a sponsor may not have to cease sponsorship of a worker who has been absent from work without pay for more than four weeks and an exception under the rules e.g. maternity leave does not apply. The guidance confirms that where there are 'compelling and compassionate circumstances' for the 4 week unpaid absence a sponsor may not have to stop sponsoring the worker. This must, however, be reported on the SMS within 10 working days of the 4 unpaid week absence and if the Home Office considers that the reason is not valid it may cancel the worker's permission (and the sponsor must stop sponsoring them). 

• Right to work checks for change of employment applications in the UK

The updated guidance also provides a specific requirement that all workers who have a Change of Employment application approved (including where they are continuing to work for the same sponsor but changing roles into a new SOC Code) must be subject to a right to work check before they can commence employment in the new role. Although this was always good practice and in line with right to work checking requirements for those changing employers, the guidance now makes this compulsory even for those remaining with the same employer.

• Salary for Skilled Workers

The guidance has been updated to confirm clearly that sponsors must only include gross pay including any guaranteed payments that are subject to income tax, NI and pension contributions when stating the gross salary on the CoS. The updated guidance provides further detail that salary cannot include pay that fluctuates such as shift allowance, overtime, bonus (including a “golden hello”) or cost of living allowance even if they are guaranteed payments. Further, salary cannot include travel or relocation costs, accommodation allowance, benefits such as shares, health care, or company cars; payments for immigration fees or any business expenses. Some transitional provisions are in place for permission to stay or indefinite leave to remain applications up to December 2026. The guidance explicitly states that when stating gross salary no allowances such as the above should be included otherwise the Home Office may take action including revoking the sponsor licence.

Some of the changes will be welcome to sponsors providing more flexibility including the changes in relation to start dates, the 28 day period and unpaid absences which have historically caused some difficulty to sponsors. The changes continue to emphasise how sponsors do need to stay up to date and ensure that they are providing the appropriate and accurate information in terms of salary for Skilled Workers given that the consequences for non-compliance can be severe.

 The full details of the changes can be found in the: Workers and Temporary Workers: guidance for sponsors part 2: sponsor a worker – general information and the Workers and Temporary Workers: guidance for sponsors: sponsor a skilled worker.