Updated Home Office Guidance for UK Businesses with Sponsor Licences Sponsoring Overseas Workers
The Home Office has recently changed the guidance issued for UK businesses with a sponsor licence to sponsor workers and temporary workers. In this article, our immigration solicitors and Sponsorship Licence lawyers highlight the key changes for sponsor licence holders.
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Key sponsor licence rule changes
The Home Office sponsor licence guidance key changes are to:
- The date sponsored employees can start work
- A sponsored employee’s hours of work
- The pay of sponsored employees
The date sponsored employees can start work
Under the old Home Office guidance, a sponsored worker could not commence their employment with your business until the official start date on the certificate of sponsorship allocated to the worker to enable them to apply for their skilled worker visa or other types of work visa. This could be frustrating for sponsoring employers and overseas migrant workers if visa applications were processed earlier than anticipated and workers were available to commence work early. The rules only allowed flexibility if a sponsored employee needed to start their employment later than the date given on the certificate of sponsorship, giving a grace period of 28 days for the sponsored worker to take up their employment.
The new Home Office guidance on sponsored workers’ start dates is more flexible as a sponsoring employer can allow a recruit to start their employment earlier than the start date recorded on their certificate of sponsorship, namely as soon as the sponsored worker has permission to enter or stay in the UK.
There is no reporting obligation on a sponsoring employer so you do not need to inform the Home Office that an overseas migrant worker has commenced their employment early.
Business immigration solicitors say that the flexibility is welcomed but sponsoring employers must still conduct a right-to-work check before their employee commences work. The right-to-work check cannot be delayed until the employment start date detailed on the certificate of sponsorship.
Deferred start dates for sponsored employees
The new Home Office guidance gives greater flexibility for overseas migrant workers who cannot start employment with your business on the date stated in their certificate of sponsorship. The old rules only gave a grace period of 28 days from the stated start date for employment in the certificate of sponsorship for the sponsored worker to take up their employment. The new guidance says a sponsor licence business can delay the start date of a new employee beyond the 28-day period if there is a good reason to do so.
What is a good reason for delay will depend on circumstances but the Home Office examples include:
- The worker’s ill health or the ill health of a family member
- The worker experiencing a bereavement
- Travel restrictions. For example, due to a pandemic or conflict
- Exit issues with the worker’s previous employer. For example, being placed on garden leave rather than being released from their contract notice period or unexpectedly being required to work their full notice period
- The worker requiring an exit visa from their home country and there are administrative delays
- The worker has other compelling family or personal circumstances justifying a delayed start date
This list of good reason examples provided by the Home Office is not intended to be an exhaustive list. However, sponsoring employers need to be aware that if the Home Office concludes there was no good reason for a delayed start date the worker’s visa could be cancelled. It is therefore important to record the good reason.
A delayed start date does not need to be reported to the Home Office using the sponsor management system provided that the worker is not delaying the start of their employment by more than 28 days from the commencement date stated on their certificate of sponsorship. Any delay beyond the 28-day limit must be reported no more than 10 working days after the end of the 28-day period.
A sponsored employee’s hours of work
If your business is applying for a defined certificate of sponsorship to sponsor a recruit applying from outside the UK for a work visa the new Home Office guidance states that you need to provide information about the visa applicant’s working hours. If you do not do so then you risk the recruit’s work visa application being refused by the Home Office.
In the certificate of sponsorship job summary, you need to state the number of hours the visa applicant will work each week. If the working hours are variable then details of the working pattern must be given to enable the Home Office to decide if the stated salary meets the minimum salary threshold for the requested visa. For example, a skilled worker visa applicant in the hospitality industry may be expected to work long weeks in a restaurant in the summer months but the restaurant may only open for limited hours in the Autumn or at the end of the tourist season.
If your business cannot specify exact hours of employment, you can give an estimate and state that the hours are to be confirmed. The correct number of hours will need to be included when the certificate of sponsorship is allocated to the visa applicant.
The Home Office can ask for more information and documents. The new guidance says if the Home Office does ask for additional information, it will try to process the defined certificate of sponsorship application within 20 working days.
The pay of sponsored employees
If your business is applying for a defined certificate of sponsorship then the worker’s salary must be contained in the application so the Home Office can be satisfied that it will meet the minimum salary threshold.
The Home Office guidance for sponsors of skilled worker visa applicants has been updated to say that only the guaranteed basic gross pay of the overseas migrant worker should be considered when detailing the salary on the certificate of sponsorship.
Under the guidance changes, other guaranteed payments contained in an employment contract with the sponsored employee are not considered by the Home Office when assessing if the offered salary meets the minimum salary threshold for the skilled worker visa. Guaranteed allowances that cannot be relied on to form part of the minimum salary threshold include:
- Golden hellos
- Payment of visa application fees and the immigration health surcharge
- Shift allowances
- Guaranteed overtime
- Bonus pay
- Private health cover costs
- Company car provision
- Accommodation or travel or cost of living allowances
- Employer pension contributions
- Employer national insurance contributions
If your employee is applying for indefinite leave to remain there are transitional provisions for applications made prior to 1 December 2026 if the employee was granted permission under the Tier 2 (General) visa route, continued with the same sponsor and the pay allowances are guaranteed.
New guidance on unpaid absences
The old Home Office guidance said that if a sponsored employee was away from work without pay for more than 4 weeks in a calendar year (the absences do not need to be consecutive) the sponsorship should stop unless the worker fell within an exception to the rule. However, the new guidance is a bit more flexible and says that even if a skilled worker visa holder is absent without pay for more than 4 weeks in total in any calendar year their unpaid leave can last longer than 4 weeks in compelling or exceptional circumstances without them losing their sponsorship.
The absence and compelling reason must be reported to the Home Office using the sponsor management system. The Home Office could cancel the employee’s visa if they do not think the absence is for compelling or exceptional reasons.
The immigration skills charge – potential change
Subject to a change in law, from 1 January 2023 the immigration skills charge for some senior or specialist worker visa applicants may not need to be paid if the worker is transferring their employment within the same business or corporate organisation for up to 3 years and the sponsored worker is an EU national transferring their employment to the UK from a business that is established in the EU.
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