What happens if a sponsored worker's start date is delayed?

The Home Office has relaxed the rules regarding delays to start dates for sponsored workers.

Under the previous rules, sponsors were required to stop sponsoring migrant workers if their work start dates were delayed by more than 28 days from whichever was the latest of:

• The start day on the worker’s Certificate of Sponsorship (CoS);
• The “valid from” date on the worker’s entry clearance vignette; or
• The date the worker was informed of the grant of entry clearance or permission to stay.

The only exception to this rule was where the start date was delayed due to the worker carrying out a contractual notice period.

All delays to start dates were required to be reported to the Home Office via the Sponsorship Management System within 10 working days, and failure to make such a report was considered a breach of a sponsor’s reporting duties.

Updated Rules for start dates for sponsored workers

Since mid-November 2022, the Home Office has taken a slightly more relaxed approach to sponsored workers’ start dates. The most significant changes for sponsors and workers to be aware of are set out below.

Can an employee commence employment before the start date on their certificate of sponsorship?

Prior to the relevant date, workers were not permitted to start employment with their sponsors until the date specified on their  certificate of sponsorship.

This is no longer the case, and workers can now commence employment early provided that their visas have been granted, and they have permission to live and work in the UK on the date employment starts. This will be particularly advantageous for migrants already living and working in the UK.In all cases, a prescribed right to work check will need to be completed by the employer before the worker commences employment.

Does an employer need to report all delays to start dates?

As explained above, employers were previously required to report all delays to start dates to the Home Office.

The updated rules mean that , only delays of more than 28 days now need to be reported. This is a welcome update and will help to reduce the administrative burdens of sponsorship on employers.

Can an employer continue to sponsor a worker if their employment is delayed by more than 28-days?

Employers are now permitted to continue sponsoring workers whose start dates are delayed beyond 28 days, even where the reason for the delay is not related to a worker’s contractual notice period.

A new exception has been introduced to the 28-day rule, meaning that where there is an acceptable reason for the delay, the sponsor can continue to sponsor the worker. The reasons for the delay will be assessed on a case-by-case basis and only ‘acceptable reasons’ will be permitted by the Home Office.

A non-exhaustive list of acceptable reasons has been given by the Home Office by way of example

• 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;
• the worker requires an exit visa from their home country and there have been administrative delays in processing this; or
• illness, bereavement or other compelling family or personal circumstances.

If the Home Office deems a reason to be unacceptable, the worker’s permission to enter or remain in the UK could be curtailed, although this rarely happens in practice. In these circumstances, a new visa application would need to be submitted (and granted) before the worker could commence employment for the sponsor.

For those already living and working in the UK, the fresh application would need to be submitted before the end of the curtailment period, to prevent the worker from becoming an overstayer.

Sponsors should keep up to date with relevant changes to the sponsorship guidance to ensure they do not fall foul of the rules. Breaches of the rules could result in the downgrading, suspension or revocation of a sponsor licence, and this could have long-term consequences for both businesses and affected workers.

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If you have any queries on the topics discussed, please get in touch with the author Megan Moorhouse.

If you require training on sponsorship duties or would like to discuss your duties in more detail, please contact the Immigration Team for further advice.