The Home Office updated the Sponsor Guidance on Workers and Temporary Workers on 9 November 2022. New concessions on delayed start dates for sponsored workers are a welcome inclusion.
The rules on start dates for workers are renowned for being inflexible. This has resulted in many sponsors being concerned that they may fall foul of the Sponsor Guidance if their sponsored worker’s start date has been delayed.
Following the Statement of Changes to the Immigration Rules HC719, new concessions have been added to the Sponsor a Worker part of the Sponsor Guidance related to start dates. The amendments have provided much needed clarification.
What were the previous rules on start dates?
The previous version of the guidance stated the following in relation to start dates:
“S3.9. You must normally stop sponsoring the worker and inform us via your SMS account if the start date is delayed by more than 28 days after whichever is the latest of:
- the start date recorded on the worker’s CoS (including any amendment to that date you have told us about via SMS while the worker was awaiting a decision on their application)
- the date the worker’s entry clearance (visa) becomes valid
- the date the worker is granted permission to enter or permission to stay.”
Changes to the work start date could be updated by way of a sponsor note before the applicant’s visa application was submitted, however the date could not be changed from that point on. The only exception to this was where the worker was required to work out a contractual notice period with their previous employer, in which case the sponsor would notify UKVI via the Sponsor Management System (SMS) if there was going to be a delay of over 28 days.
What are the new concessions on start dates?
The updated guidance provides useful clarifications and additional concessions which include:
- If a worker’s start date (or end date) changes before the worker has applied for entry clearance of permission, this can be reported by adding a sponsor note to the CoS, keeping the previous provision in place.
- If a worker has been granted permission to enter or stay in the UK, they may begin working for their sponsor earlier than the start date on their CoS. This does not need to be reported via the SMS.
The section specific to delays to the start date of employment has been updated as follows:
“S3.10. Once a worker has been granted permission, they should normally start working in their sponsored employment no later than 28 days after whichever is the latest of:
- the start date on their CoS (taking into account any changes to that date reported by you before their application for entry clearance or permission was decided)
- the “valid from” date on the worker’s entry clearance vignette (visa)
- the date the worker is granted permission to enter, if they entered the UK without entry clearance under the Creative Worker visa concession
- the date the worker is notified of a grant of entry clearance or permission to stay.”
Importantly, the new guidance has clarified that if a worker does not begin employment within the relevant 28 days, the sponsor can inform UKVI of the new start date and why there is a delay. This must be reported by the end of ten working days after the 28-day period.
UKVI will consider if there is a valid reason for the delayed start. Some examples of valid reasons are provided in the guidance and include:
- travel disruption due to a natural disaster, military conflict or pandemic;
- the worker being required to complete a contractual notice period for their former employer;
- the worker requires an exit visa from their home country and there have been administrative delays;
- illness, bereavement or other compelling family or personal circumstances.
The guidance states that UKVI may cancel the worker’s permission if they do not consider a valid reason has been provided for the late start.
Sponsor must carry out a right to work check before the employment starts and conduct any relevant follow-up checks. If the worker tells the sponsor that their permission has been cancelled, they must stop sponsoring them and report via the SMS within ten working days.
Why is the update significant?
The guidance on delays to start dates has been too vague for some time. Sponsors are understandably keen to comply with the Sponsor Guidance and their duties as a sponsor. The lack of clarity and the inflexibility in the previous guidance was a cause for confusion so the measures taken to provide greater certainty for sponsors is a positive step.
It is important, however, for sponsors to be mindful that UKVI may still cancel a worker’s permission if they do not believe the reason for a delay is valid. As such, sponsors and workers should still approach delays to start dates with caution.
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