When can a sponsored employee start work?
Sponsored employees who have obtained permission to enter or stay in the UK will no longer have to wait for the start date on their Certificate of Sponsorship (CoS) to begin their sponsored employment. Instead, they can start work as soon as they have permission to enter or stay in the UK (subject to their employer carrying out the correct right to work check).
There is also no need to report the new start date on the sponsor management system (SMS) if the employee starts work earlier than planned.
Can a worker begin work after the start date mentioned on the CoS?
Previously, if a sponsored employee did not begin work within 28-days of the start date on the CoS or the start date on the visa (whichever was later), the sponsors had to inform the Home Office via the SMS and potentially stop sponsoring the employee. There was an exception to this rule if the sponsored employee was working out a notice period with a previous employer. If the actual start date was later than the date given on the CoS (but within the 28-day window), the sponsor had to make a note on the SMS of this.
Now, it is no longer a requirement to report a delayed start date on the SMS. The 28-day rule continues to apply but there is no a wider discretion on sponsors to be able to continue sponsoring employees.
Can sponsorship continue if the start date is delayed by more than 28 days?
Sponsors can continue to sponsor employees if there is an acceptable reason. The updated guidance gives several suggested acceptable reasons which provides a non-exhaustive list to sponsors. These include:
- Travel disruptions due to natural disaster, military conflict, or pandemic;
- The employee is required to work out a contractual notice period for their previous worker – if the employee is in the UK, their conditions of stay must allow them to do this;
- The employee requires an exit visa from their home country and there have been administrative delays in processing this;
- Illness, bereavement or other compelling family or personal circumstances.
What information needs to be recorded on the Cos?
When, as a sponsor, you make an application for a defined CoS, you must state the salary you intend to pay so that the Home Office can check it meets the minimum requirements. To establish this the Home Office also needs to know how many hours a week the sponsored employee will be working. This information must now be included in the ‘summary of job description’ box when requesting a defined CoS, or the application will be rejected.
If the working hours will vary, you must include information about the proposed working pattern. Helpfully, the updated guidance also says that if the hours are still being negotiated, you can include the number of hours a week someone in that role would typically work. You can then confirm the agreed number of hours when the CoS is assigned.
What are the consequences for failing to do this?
If the application does not provide this information, the Home Office may reject the application for defined CoS.
As in all cases, the Home Office can and does ask for additional information and documents to support the application. The guidance now confirms that if the Home Office does ask for additional information, it will aim to process the defined CoS application within 20 working days. This is a significant increase on the usual 1-2 day turnaround for defined CoS applications but in our experience, some applications can take longer than 20 days.
What is the new concession for extended absences without pay?
Sometimes a sponsored employee may have been absent from work without pay for more than four weeks and have a have compelling and compassionate reason for their absence.
If the reason is not one of the given exceptions (including family or sick leave), the Home Office will make a judgment call on whether to cancel the sponsored employee’s permission to stay in the UK.
The four weeks of absence don’t have to be consecutive, and rolling absences in a calendar year are counted. In all cases, the absence must be recorded on the SMS.
What can be included in the salary on the CoS?
Only guaranteed basic gross pay should be included in the salary section of the CoS. Should the sponsored worker receive other allowances (pay or benefits), the Home Office will no longer consider them when assessing the worker’s level of pay even if they are guaranteed. This means payments such as shift allowances, pension contributions and accommodation costs should not be included in the figure entered for gross salary.
What are the transitional provisions?
Applications made for permission to stay or indefinite leave to remain in the UK up to 1 December 2026 may include allowances in the salary figure entered on the worker’s CoS but only where
- the employee was previously granted permission under the Tier 2 (General) route,
- the sponsor has remained the same and
- the allowances are guaranteed.
What are the expected changes to the Global Mobility, Senior and Specialist worker route?
From 1 January 2023 (if Parliament agrees), there may be a new exemption from paying the Immigration Skills Charge for senior and specialist worker sponsors.
This is expected to apply to EU nationals who have been assigned to the UK by a business established in the EU which forms part of the sponsor group and where their assignment is due to last no more than 3 years.
Our specialist Business Immigration team can breakdown the overload of immigration guidance and information, in a way that is clear and easy to digest, so you can employ people legally here in the UK. Have a question about business immigration? Reach out today at a.christen@capitallaw.co.uk.
