Rachael Ockenden

Post pandemic changes to the sponsor guidance – hybrid working and delayed start dates

6th April 2023 By Rachael Ockenden

Several changes have come into effect for Skilled Worker sponsors over the law few months. Two of these changes in particular are a reflection of the lasting impact of the pandemic.

Hybrid working

The guidance for sponsors part 3: sponsor duties and compliance was updated on 31 March 2023 to include welcome clarification on hybrid working. It has always been the case that a sponsor is required to report when a sponsored migrant’s work location changes, within 10 working days of the change taking effect. A sponsor is now also required to report when a worker is, or will be, working remotely from home on a permanent or full-time basis or where the worker has moved, or will be moving, to a hybrid working pattern.

The guidance defines a ‘hybrid working pattern’ as a situation where the worker will work remotely on a regular and planned basis from their home or another address.

During the pandemic, the Home Office made it clear that sponsored migrants could work from home. It became less clear whether this would be permitted to continue beyond lockdowns and in line with the government’s ‘living with covid’ approach. One could have anticipated that the Home Office would argue that if a Skilled Worker migrant was working from home on a full-time basis, they do not need to be in the UK to undertake the role and therefore do not fulfil the requirements for obtaining a Skilled Worker visa. The recent changes to the guidance seem to suggest that they are not taking this approach.

Delayed start dates

Towards the end of last year, the Home Office removed the requirement to report where a sponsored migrant’s start date is delayed by no more than 28 days. This is likely a reflection of the overwhelming number of late start date reports that have been submitted since March 2020 due to the delays in visa processing times and international travel restrictions which prevented sponsored migrants from starting work in the UK as planned.

Where a sponsored migrant’s start date will be more than 28 days beyond the start date of their CoS, or their grant of immigration permission, a sponsor must report this and explain the reasons for the delayed start. However, the sponsor does not need to wait for the Home Office to review and accept the report before the sponsored migrant begins work. We believe these reports are currently taking at least several months to be processed.

Whilst the reduction in reporting duties for delays of 28 days or less is of course welcome, the system in place for delays of more than 28 days could result in sticky situations for sponsors and their sponsored migrants. If the Home Office does not accept the reason for a delay of more than 28 days, the sponsored migrant’s leave could be cancelled. This could then present various commercial and logistical issues. For example, if a sponsored migrant, their partner and children all move to the UK only to find out their leave has been cancelled within a few months, this could have significant implications. Although it may be possible for a Skilled Worker sponsored migrant to apply for leave to remain with a newly issued CoS in this situation, there would be substantial financial and administrative costs for both the sponsor and migrant.

We will need to wait and see what happens in practice and whether the ’28 day’ rule will be sufficient and flexible enough for employers. If you require advice in relation to the above or any other business immigration matters, please contact Rachael Ockenden at rachael@gryklaw.com.

Amendments to the requirements to naturalise as a British citizen

29th September 2022 By Rachael Ockenden

Two of the requirements to naturalise as a British citizen relate to the lawfulness of an applicant’s residence in the UK. Firstly, there is the requirement to complete five years’ lawful residence immediately preceding the application (or three years if you are married to a British citizen). The second requirement falls within the good character criteria which includes compliance with the immigration rules in the 10 years preceding the application.

The Nationality and Borders Act brought in amendments to these provisions on 28 June 2022 and the nationality guidance has recently been updated to reflect these changes.

Where an individual holds indefinite leave to remain in the UK (ILR), they can be treated as meeting the lawful residence requirement during the qualifying period, without further enquiry.

This is useful for many EEA nationals and their family members who may not have resided in the UK in accordance with the EEA Regulations, for example if they did not have Comprehensive Sickness Insurance, but were granted settled status under the EU Settlement Scheme.

The guidance also now states that breaches relating to illegal entry, absconding and overstaying may also be disregarded in the 10 year period, provided that they have been granted ILR and there are no concerns arising in relation to this.

The new, more generous provisions apply only to naturalisation applications submitted on or after 28 June 2022.

We understand that some clients who were previously advised against applying to naturalise may now be eligible under the new provisions. We would encourage anyone with any queries on these changes to contact us for advice.

UK Expansion Worker – a inadequate replacement for the sole representative route?

28th April 2022 By Rachael Ockenden

The rules relating to business immigration changed once again in April 2022. In another alleged bid to simplify the immigration rules, the Home Office has introduced the Global Mobility visa which encompasses five categories, two of which replace existing routes. The feeling amongst many immigration practitioners is that this is simply yet another rebranding exercise which does not quite hit the mark.

One of the categories being replaced is the sole representative of an overseas business category.

Whilst the sole representative category may have been underused, it did facilitate UK expansion for overseas companies with no presence in the UK. The sole representative category was an unsponsored route and was relatively attractive in that it allowed dependent family members to join the main applicant and could lead to indefinite leave to remain in the UK (ILR) after five years.

The sole representative category has now been replaced by the UK Expansion Worker route. This is, quite inexplicably, a sponsored route. This means that the overseas business will need a ‘footprint’ in the UK in order to apply for a sponsor licence to bring an expansion worker to the UK. Applying at the right time, when a company has a footprint but no a trading presence, will be crucial.

An overseas business should be granted a provisional licence if there is no one in the UK able to run the licence, which presumably will quite often be the case where there is only a footprint. The proposed migrant themselves will then be responsible for maintaining the licence and assigning themself a Certificate of Sponsorship to support their visa application. Once the UK Expansion Worker is in the UK, they will need to request the licence to be upgraded from the provisional status. Following the success of this request, the overseas business will then be able to send a maximum of up to four further expansion workers to the UK.

Under the previous category, an overseas business was only ever permitted to have one sole representative in the UK. The Home Office therefore sees the increased number of permitted workers to be more generous. However, in practice, it is quite likely that the request to upgrade a licence will be subject to lengthy waiting times which may not support the business’ needs or the projections of a business plan.

There are stricter requirements in relation to the overseas business trading history and the proposed UK expansion, which must include establishing a UK trading presence within two years. If a trading presence is not established within two years, the business’ licence can be revoked. How the Home Office plans to keep track of a business’ progress is yet to be seen.

A significant disadvantage of the new route is that it is no longer a route to ILR. A UK Expansion Worker will only be granted immigration permission for a maximum of two years. If the business has established a trading presence, and applies for and is granted a Skilled Worker licence, the UK Expansion Worker could switch into this category if they met the relevant requirements. The Skilled Worker category is a five year route to ILR, though an individual switching could not rely on the time already spent in the UK under the UK Expansion Worker route.

It remains to be seen how attractive or effective the UK Expansion Worker route is for overseas businesses seeking to establish a branch in the UK.

Ambitious roadmap to streamlined sponsorship

2nd September 2021 By Rachael Ockenden

The Home Office has recently set out a roadmap for a sponsorship system that will enable employers to have an overseas worker ready to start work in the UK faster than in any other G20 country. The Home Office is looking to streamline the process for companies and universities becoming sponsors, and for workers and students to obtain immigration permission for the UK.

Substantial changes had already been made to the Skilled Worker category in response to Brexit, which significantly reduced the length of the process to recruit a worker from overseas eg by removing the resident labour market test.

The Home Office is now planning a series of changes to further overhaul the sponsorship system.

The next set of changes include:

a review of the documentation required for a sponsor licence application (with the intent of making it easier for a company to register as a sponsor);
the establishment of a service that supports small and micro businesses (the Home Office currently provides individual support to sponsors, but at a fee of £25,000 per year);
a review of the fees the sponsorship system entails (the Home Office has acknowledged the current fees disproportionately affect smaller sponsors);
the introduction of an enhanced Skilled Worker eligibility checking tool; and
piloting a new salary check feature with HMRC to check employees are being paid the amount a sponsor has confirmed.

The Home Office’s digitalisation plans (Digitalisation of the Immigration System (gryklaw.com)) will also serve the sponsorship system, allowing for automated checks and more knowledge sharing between the Home Office and HMRC. This automatic data sharing will in turn be used to further monitor compliance among sponsors.

One of the most welcome changes will be the updating of the Sponsor Management System, which has not changed since it’s introduction in 2008, though we will have to wait until the end of 2022 at the earliest for this.

Please do not hesitate to contact us at contact@gryklaw.com or on 020 7401 6887 if you need any advice on the above.

The end of the resident labour market test

1st April 2021 By Rachael Ockenden

The launch of the Skilled Worker category on 1 December 2020 heralded a new age for sponsors with the removal of the resident labour market test (RLMT), the time consuming and administratively burdensome advertising requirement of the Tier 2 (General) immigration route. The RLMT arguably did nothing to protect resident workers and was often merely a box-ticking exercise for sponsors.

However, the guidance accompanying the new rules appeared to retain the RLMT requirement leading to months of confusion amongst practitioners and sponsors alike. The guidance stated that the same documents sponsors were required to keep on a sponsored migrant’s file when an RLMT had been completed were still required for sponsorship cases post 1 December 2020.

The guidance was finally amended this month to clarify that there were different recordkeeping requirements for cases where an RLMT was a requirement and for those where it was not. The guidance also gives examples of the permissible circumstances in which no advertising at all would be carried out including where a worker:

was identified through a university milk round;
was already legally working for the sponsor on another immigration route and the sponsor established they were suitable for the role through their previous performance; and
made a speculative application and the sponsor was satisfied they had the necessary skills and experience to do the job.

An explanation and, where practicable, evidence must be provided to support these recruitment practices.

Whilst the clarification provided by the guidance is welcome and reassuring, the guidance still appears to mandate how a sponsor should advertise. RLMT-like documentation is still required to be kept on file and it would arguably be easier for a sponsor to rely upon one of the alternative circumstances rather than advertising for the role. It remains to be seen how the Compliance Officers at the Home Office will assess these cases.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.