29 November 2022
The Home Office has recently amended its sponsor guidance for workers, following its last published Statement of Changes and regular policy review. Employers will welcome some of the changes covered in this update, including those on reporting of start dates and unpaid absences, and a future new exemption from the Immigration Skills Charge for some EU applicants.
We know our sponsor clients grappled with the previous rule that prohibited a delay in the CoS work start date (on an approved visa) by more than 28 days. The only exception to this rule was where the employee needed to serve a contractual notice period with their previous employer.
In a welcome change, the Home Office has now expanded its list of 'acceptable reasons' when a sponsor can delay a CoS work start date by more than 28 days. As well as serving a notice period, the new exceptions now include:
This is not a definitive list, so the Home Office will judge any other reason given by employers on its merits, depending on the circumstances.
To report a start date delay of more than 28 days, sponsors will need to submit a suitably detailed notification to the Home Office within 10 working days of the end of the 28-day period. As has always been the case, if the Home Office does not agree with the reason for the delay in start date, the visa may be cancelled.
The 28-day clock commences from the later of the CoS start date (including any changes to it made before the visa decision), the 'valid from' date on the passport visa vignette, and the date of decision. In the case of those entering the UK without entry clearance under the Creative Worker concession, the 28 days can run from date of UK entry.
Where the CoS work start date is delayed by up to 28 days, most sponsors will no longer need to report anything in the SMS. The exception to this is that Scale-Up sponsors must still report the actual work start date.
In another helpful change, the Home Office has confirmed that it will allow sponsored workers to start working for the sponsor from the worker's visa start date, even if that's before the CoS work start date.
For example, that could cover a situation where the CoS start date anticipates the worker being held to a contractual notice period in a Change of Employment application, but the employer agrees to end the worker's employment earlier than expected. Sponsors do not need to make any notification in those situations.
Skilled Worker sponsors will be familiar with the process of submitting a DCoS request to the Home Office in cases where the proposed Skilled Worker applicant is applying from outside of the UK.
The Home Office is now requiring sponsors to state the proposed contractual weekly working hours for the applicant in the 'Summary of job description' section of the DCoS request. Not including this new detail may lead to the Home Office rejecting the submitted DCoS request.
If the number of weekly hours is subject to negotiation or final agreement, sponsors should enter the number of hours they would normally expect employees in a similar role to work each week and enter "to be confirmed" (or similar) in brackets. The sponsor should then enter the correct number of hours on the CoS if the DCoS request is granted.
Separately, some sponsors will be aware that the Home Office can (and does) ask for additional information – for example about the recruitment process – after the sponsor has submitted a DCoS request. The Home Office has confirmed that it aims to make a DCoS decision within 20 working days of the sponsor responding in these situations.
When the Skilled Worker visa category was introduced in December 2020, only proposed basic salary counted towards the minimum salary threshold.
In a small change to this policy, the Home Office will now allow sponsors to include other guaranteed compensation payments that are treated "exactly the same as basic gross pay for tax, pension and national insurance purposes." The Home Office will expect that the sponsor's payslips confirm those guaranteed amounts and any corresponding tax deductions. Any non-guaranteed pay (like shift work or bonus) will not be treated as salary by the Home Office.
The Home Office has clarified that roles that qualify for Skilled Worker sponsorship are "generally those which involve a variety of work activities, which may be complex. They are likely to include considerable responsibility and autonomy, and may include managing others." The minimum skill level for Skilled Worker roles remains at Level 3 on the Regulated Qualifications Framework (RQF), but this shift in role expectation reflects the removal of language from the guidance making RQF Level 3 equivalent to A-Level standard.
Sponsored workers are only able to take short periods of unpaid leave. In most cases, periods of unpaid leave lasting more than four weeks in a calendar year (consecutively or cumulatively) will normally require the sponsor to stop sponsoring the worker, unless an exception applies such as statutory parental leave or sick leave. This rule is still in place, but the Home Office has now added "compelling or exceptional circumstances" to its list of exceptions.
Sponsors will still need to submit a suitably detailed notification to the Home Office in these situations, and the sponsored worker's visa may be cancelled if the Home Office does not agree that an exception applies.
The Home Office has clarified that the ISC will not apply in cases where the visa applicant is applying to switch status from a valid Student visa to a Skilled Worker visa, even if the applicant has not graduated from their course.
Secondly, subject to Parliamentary approval, sponsors from 1 January 2023 will be exempt from paying the ISC when sponsoring some EU national visa applicants applying under the Global Business Mobility – Senior or Specialist Worker category. To qualify for this exemption, the worker must be transferring to the UK from a business established in the EU that is in the same sponsor group as the UK sponsoring entity. The CoS period also cannot exceed three years for this concession to apply. This new concession will also extend to Latvian non-citizens, but will not apply to nationals of Iceland, Norway, Lichtenstein, or Switzerland, as these countries are in the European Economic Area but not the EU. For large international groups that have EU operations with workers coming to the UK for projects and temporary assignments, this change will potentially save employers up to £3,000 per visa.
If you would like to explore any of this further, please do get in touch with us.
by multiple authors