The Home Office has updated its ‘Workers and Temporary Workers: guidance for sponsors’.
The changes affect UK employers with sponsor licences and provide clarification on how to amend a sponsored worker’s start date in the UK after their visa has been granted. Sponsors should take note of the changes in order to comply with their compliance obligations – getting it wrong could in some cases lead to the sponsored worker’s visa being cancelled.
With effect from 9 November 2022:
- A worker can start working in their sponsored employment as soon as they have permission to enter or stay in the UK, even if this is before the start date recorded on their Certificate of Sponsorship (CoS). The Home Office had previously informally advised that this was possible, so this formal confirmation is helpful. An earlier start date does not need to be reported on the sponsor management system (SMS).
- Once a worker has been granted permission to work, they should normally start working in their UK role no later than 28 days from the latest of:
- the start date on their CoS (taking into account any changes reported before their permission was granted)
- the “valid from” date on their entry clearance vignette or
- the date the worker is notified of a grant of entry clearance or permission to stay
A delayed start date does not need to be reported on the SMS provided that the delay is no more than 28 days.
- If the start date is delayed by more than 28 days, employers now have two options, a choice that must be made and reported on the SMS no later than 10 working days after the 28-day period has ended:
- report the new start date and the reasons for the delay, if the sponsor wishes to continue with the sponsorship (see guidance relating to reasons below); or
- stop sponsoring the worker
- Sponsors must provide an ‘acceptable’ reason for a start delayed by more than 28 days. The Home Office has provided a list of acceptable reasons but states that this is not ‘comprehensive’ and that each case will be judged on its merits:
- travel disruption due to a natural disaster, military conflict or pandemic
- the worker is required to work out a contractual notice period for their previous employer – if the worker is in the UK, their conditions of stay must allow them to do this
- the worker 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.
The guidance also states that the Home Office may cancel the worker’s permission if it does not consider there is a valid reason for the delay. There has always been a possibility of visa cancellation for delays beyond 28 days – the Home Office’s apparent willingness to now consider additional reasons to avoid it is helpful. However, given the risk of visa cancellation for being unable to predict what the Home Office considers acceptable, sponsors should continue to ensure that workers start work in the UK within 28 days unless there is a very good reason for them not do so. Based on the Home Office’s examples, we would recommend that only serious compassionate circumstances or those genuinely outside the sponsor’s or worker’s control should be used as a reason for delay beyond 28 days. The alternative is for the sponsor to cancel the sponsorship and begin the visa process again. Sponsors would do well to remind their sponsored workers of this rigidity in work start dates at the outset of the process.
If you have any questions relating to these changes, sponsor compliance duties generally or other immigration matters, please contact your usual Squire Patton Boggs business immigration team member or Annabel Mace, partner and Head of UK Immigration.