Sponsor Licence Change of Circumstances

    Sponsor licence change of circumstances

    IN THIS ARTICLE

    Given the business-critical nature of sponsoring migrant workers, careful and effective management of your sponsor licence is essential to avoid Home Office enforcement action that could impact your operations.

    As a UK sponsor licence holder, either under the Workers and Temporary Workers routes, you must ensure you have the necessary HR processes in place to maintain an up-to-date sponsor licence at all times and that you comply with your duties and obligations, including your duty to inform the Home Office of certain changes in circumstances relating to a migrant worker, as well as changes to your business.

    This guide sets out your duty to report sponsor licence changes of circumstances, from the rules relating to reporting certain migrant activities and business changes, to the implications of your organisation failing to meet this duty.

    Sponsor licence duties

    Sponsor licence holders must act in accordance with the UK Immigration Rules and meet all of their compliance duties as set out under the Home Office’s sponsorship guidance for employers.

    As a licensed sponsor, you will be responsible for assigning Certificates of Sponsorship (CoS) to each worker you intend to sponsor. You will also be given access to the Sponsor Management System (SMS) to manage your licence and ensure compliance with your sponsor licence duties. The SMS is an online portal that allows you to carry out day-to-day sponsor activities, such as reporting certain changes in circumstances to the Home Office.

    When you apply for your licence, you will be required to nominate various key personnel to manage the sponsorship process and to use the SMS on an ongoing basis.

    Duty to report changes in circumstances

    As a licence holder you are under a duty not only to report certain migrant activities, but also any significant changes to your business.

    Reporting changes to your organisation

    In addition to reporting certain migrant activities, or any change in their circumstances, you must also report to the Home Office any significant changes in the circumstances of your business. This can include any of the following:

    • If you sell all or part of your business
    • If you stop trading or become insolvent
    • If you substantially change the nature of your business
    • If you are involved in a merger or take-over

    Additionally, you must notify the Home Office of any organisational changes, for example, if you are changing the name and/or address of your business, if there are any changes in the size or structure of the business, or if you are making changes to the key personnel responsible for managing your sponsor licence.

    You will also need to tell the Home Office if you have been convicted of a relevant criminal offence, such as fraud or money laundering, even though this could have an adverse effect on your sponsor licence, including its potential revocation. In other cases, certain changes such as a complete takeover may result in the need for a new sponsor licence to be applied for.

    Nonetheless, as a sponsor licence holder, you are still legally obliged to report any sponsor licence change of circumstances, or risk action being taken against you by the Home Office in any event for your failure to do so.

    Reporting changes to sponsored worker activities

    Any significant changes to a migrant worker’s employment or circumstances must be reported to the Home Office, including non-attendance, non-compliance or disappearance. In particular, you are under a duty to report the following:

    • Where a migrant worker does not turn up for their first day of work, including any reason given for their non-attendance
    • Where a migrant worker leaves their employment earlier than the date shown on their CoS, for example, through resignation, dismissal or where any registration required for working in the UK, through a governing body or otherwise, comes to an end
    • Where you stop sponsoring a migrant worker for any other reason, for example, you become aware that they have moved into an immigration route that does not need a sponsor
    • Where a migrant worker receives a promotion, a change in pay or a change in their core duties, or the location at which they work changes
    • Where a migrant worker’s regular working pattern changes
    • Where a migrant worker is absent from work without permission for more than 10 consecutive days
    • Where a migrant worker is absent from work without pay for 4 weeks or more where this is not covered by the exceptions permitted in the sponsor guidance
    • Where you have information that suggests that a migrant worker is breaching the conditions of their leave.

    Reporting delayed start date for sponsored workers

    It’s a common issue that start dates can be later than initially planned due to unforeseen or uncontrollable circumstances. This had previously resulted in reporting duties for the sponsor – ie to update the SMS within ten working days of the change. The rules also required that in the event the delay was greater than 28 days, the sponsor could no longer sponsor the worker and instead, had to start the process again if they wanted to continue sponsoring them.

    Updates to the sponsor guidance in November 2022 changed and clarified the rules on notifying the Home Office when a sponsored worker’s start date is delayed.

    Under the new rules, sponsors are no longer required to notify if the start date is less than 28 days after the initial stated date.

    Additionally, sponsors are now able to continue sponsoring a worker even if the delayed start date is more than 28 days after the initial date, provided they notify the Home Office of the new start date within ten working days after the 28-day period and they submit the reasons for the delay. The Home Office reserves the discretion to cancel the worker’s visa if the stated reasons for the delay are not deemed suitable. Instances when the reasons for the delay would be considered suitable would include:

    • Delays in processing for an exit visa from the worker’s home country.
    • Disruption to travel due to pandemic, conflict or natural disaster.
    • Worker being legally obliged to fulfil contractual notice period.
    • Exceptional circumstances such as illness or bereavement.

    Reporting sponsored staff taking unpaid leave

    Under previous rules, the sponsor was required to cease sponsoring any worker who had taken a period of unpaid leave of more than four weeks in any calendar year. The changes in November 2022 removed this requirement. Under the new rules, sponsors can continue to sponsor the worker, provided they notify of the reasons for the unpaid leave. Again, the Home Office retains the discretion to cancel the worker’s visa if the reasons for taking extensive unpaid leave are not suitable.

    Reporting hybrid working arrangements for sponsored workers

    During COVID, the Home Office placed no obligation on sponsors to inform the Home Office when a sponsored worker was working remotely from home. In Spring 2023, new guidance was issued ending this position and requiring sponsors to report hybrid working arrangements on the SMS. However, shortly after this was announced, the Home Office advised in May 2023 that it would not be proceeding with the new requirement and would not impose a reporting duty in relation to sponsored workers with hybrid arrangements.

    That said, sponsors remain obligated to meet their duties under Appendix D, and as such, internal records must still be kept detailing sponsored workers’ flexible working arrangements. In circumstances where the arrangements involve flexible hybrid hours, both in and out of the individual’s normal place of work, the sponsor should also record the average number of hours in each location, together with any other relevant information.

    Importantly, the Home Office policy team has indicated that if sponsored workers are to work solely on a remote basis from home in the UK, this may call into question the need for them to have permission to be in the UK. A sponsored worker can travel abroad for short business trips which are required as part of their role, although carrying out their role from overseas on an extended basis may invalidate their sponsorship and jeopardise their ability to return to the UK. Equally, time spent outside the UK may affect any future immigration plans that the migrant worker may have, where they may not meet the lawful continuous residence requirement for any application for indefinite leave to remain, even if, for example, they have spent 5 years on a Skilled Worker visa.

    Reporting duties when sponsoring offshore workers

    Offshore workers, or their sponsors if they have one, are now required to notify the UK Secretary of State of their arrival into UK waters and when they depart.

    The Immigration (Offshore Worker Notification and Exemption from Control (Amendment)) Regulations 2023 took effect from 12 April 2023.

    Under the rules, the worker, or their sponsor, must inform the Home Office when the individual arrives in UK waters at the start of the job and when they leave UK waters at the end of the job.

    Temporary authorised absences, such as annual leave or absences relating to the employment, do not need to be reported.

    Notification is also not required when an offshore worker goes through UK immigration control before they arrive in UK waters. However, in these circumstances, if the worker is sponsored, the sponsor must continue to comply with their record keeping duties by recording the date of entry.

    Sponsors are required to report the event to the Home Office via the online Sponsorship Management System (SMS), however, this functionality is not yet live.

    In the meantime, sponsors are required to make the notifications by email to offshoreworkernotificationsbox@home.gov.uk, by providing:

    • Sponsor registration identification number
    • CoS reference number of the offshore worker
    • Offshore worker’s name, date of birth and nationality
    • Name of the ship or vessel where they will be based
    • Date they entered or exited UK waters

    Notifications have to be made no earlier than the day the offshore worker arrives in the United Kingdom and no later than 10 working days beginning on the day after arrival; and no earlier than the day on which the offshore worker leaves the United Kingdom and no later than 10 working days beginning on the day after the offshore worker has left the United Kingdom.

    How to report changes in circumstances

    In the majority of cases, to register any sponsor licence change of circumstances, a report will need to be submitted in the SMS by a Level 1 user. This is the person responsible for the day-to-day management of the sponsor licence using the online portal.

    Certain changes will be automatically updated within the SMS, whereas others can take up to 16-18 weeks to be processed if the Home Office is requesting further information.

    In specific instances, however, you may not be permitted to use the SMS to report or request a change, for example, to appoint a new Level 1 user or to surrender your licence. Instead, you will need to complete a “change of circumstances” form.

    When do you need to report sponsor licence changes by?

    There are different timescales involved when reporting any changes, depending on the nature of the sponsor licence change of circumstances that you need to report.

    Changes to the organisation (as specified under Section C2 of the Home Office guidance) must in most cases be reported within 20 working days of the change happening.

    Changes to workers’ circumstances must, in most cases, be reported within 10 working days of the change.

    By way of example, if a migrant worker is absent from work for more than 10 consecutive working days without permission, you must report this within 10 working days of the 10th day of absence. If, on the other hand, you are selling all or part of your business, or are involved in a merger or take-over, you must report this within 20 working days of the change occurring.

    The guidance also makes specific reference to circumstances where a worker is suspected of breaching their conditions of stay. In this case, the sponsor must notify the Home Office ‘as soon as reasonably practicable’. If the sponsor suspects any worker they are sponsoring may be engaged in terrorism or criminal activity, they must inform the police, again, ‘as soon as reasonably practicable‘.

    Priority change of circumstances

    To register a change with a faster response, you may be able to use the priority service at a cost of £200 to report certain changes, including:

    • additional certificate of sponsorship (CoS) allocation
    • annual certificate of sponsorship (CoS) allocation
    • add a new level 1 user
    • change level one user
    • replace the authorising officer (AO)
    • amend the authorising officer (AO)
    • replace the key contact (KC)
    • amend the key contact (KC)
    • add a representative
    • amend your organisation details – moved to new premises

    Importantly, the priority service does not guarantee the request will be approved.

    How to make a priority application for changes in circumstances

    The priority service is only open to sponsors who hold a valid, A-rated Worker or Temporary Worker licence. The changes being reported cannot already have been submitted.

    The priority service is not open to premium sponsors.

    Priority requests should be submitted via the SMS and a completed priority request application then emailed to the Worker and Temporary Worker priority service mailbox: postlicencepriorityservice@homeoffice.gov.uk, with a completed Worker and Temporary Worker priority request form as an attachment.

    Multiple priority requests can be made at the same time within the same email, but these must be on the same licence.

    If the request is to replace the Authorising Officer or appoint a representative, the printed submission sheet must also be submitted.

    Under the priority service, requests for additional CoS can only for be for undefined CoS.

    The priority service is only open from 9am to 5pm Monday to Friday and all requests made outside of these times will not be considered. A maximum of 60 priority service requests will be accepted each day. If the service is fully subscribed, the user will receive an email response notifying to apply on the following working day. If the request is eligible, the user will receive an email containing a link to make payment. Payment must be made within 72 hours. The service offers fast-tracked processing of up to five working days from the payment date.

    Failure to notify of sponsor licence changes in circumstances

    As a licensed sponsor, you are expected to play your part in ensuring that the immigration system is not abused, not least in identifying at an early stage any patterns of migrant behaviour that may give cause for concern.

    As such, in the event that you fail to notify the Home Office of any sponsor licence change of circumstances, both in relation to a migrant worker or your business, or you otherwise fail to comply with any of your sponsor duties, the Home Office has a number of measures that it can implement to penalise incompetent and/or dishonest licence holders.

    These measures can include a limit placed on the number of CoS you can assign, or unused CoS being withdrawn. It can also lead to your sponsor licence being downgraded, suspended or revoked.

    In circumstances where the Home Office have reason to believe that you have breached your sponsorship duties, it will first consider the nature and extent of the suspected breach.

    Where relatively minor, and you are willing and able to correct the breach, typically your licence will be downgraded from an A to a B-rating and an action plan will be issued setting out the steps you must take to retain your licence.

    However, where there is a serious breach indicating a significant or systematic failing such that you pose a serious threat to immigration control and/or you no longer meet the eligibility or suitability requirements for holding a licence, the Home Office is more likely to suspend your licence and investigate the matter further. It may even revoke your licence altogether without prior suspension.

    Your licence will also be revoked if you fail to comply with any action plan designed to reinstate your licence rating.

    Needless to say, if your sponsor licence is revoked, this can have a hugely detrimental impact on your business, not least if you are heavily reliant upon employing skilled migrant workers, either due to shortages of skilled workers in the domestic labour market or otherwise.

    Having revoked your sponsor licence, the Home Office will also curtail the leave of any migrant workers who are currently employed by you.

    Can you appeal against Home Office enforcement action?

    In the event that your sponsor licence is revoked in consequence of you failing to report any sponsor licence change of circumstances, you will have no right of appeal. That said, you may be able to argue that any decision reached by the Home Office was either unlawful, unreasonable and/or procedurally improper. This is known as seeking a judicial review.

    That said, judicial review is a process by which a court reviews the lawfulness of a public body’s decision, examining the way in which the conclusion was reached, rather than evaluating the merits of the decision itself. As such, this can be difficult to prove, not least because you would have to demonstrate to the court that the decision is one that no reasonable body could have come to.

    Having had your sponsor licence revoked, although there is no right of appeal, you will be allowed to re-apply. That said, this does not necessarily mean that your application will be successful, and you will not be allowed to submit you fresh application until the end of the appropriate cooling-off period.

    The cooling-off period is usually 12 months from the date you were notified by the Home Office of the revocation. If you do make an application before this period has passed, the Home Office will refuse this.

    If you submit an application after the cooling-off period, it will be treated in the same way as any other application, requiring you to pay the relevant fee and submit the necessary documentation in support. You should, however, address any reasons why your previous licence was revoked before you re-apply.

    Key considerations for sponsors

    One of your main responsibilities as a sponsor licence holder is to monitor the immigration status of any migrant workers. As such, you must have in place sufficient HR systems that enable you to do this, from tracking and recording employees’ attendance to reporting to the Home Office if there is a problem, for example, where a migrant employee stops coming to work.

    As part of this process you should keep copies of relevant documents for each employee, including passport and information relating to right-to-work checks, ie; to ensure that a worker is entitled to be in the UK and to undertake the work in question. You must also keep all employee contact details up-to-date.

    In the event that you don’t have adequate HR systems in place and the Home Office decide to carry out a compliance review, unannounced or otherwise, you run the risk of action being taken against you on the basis that you are not deemed capable of carrying out your sponsorship duties.

    It is therefore imperative that you ensure that your HR systems will enable you to comply with all of your duties and obligations as a sponsor licence holder, not least in monitoring and reporting migrant activities.

    You must also ensure that your key personnel, ie; those responsible for using the SMS on a day-to-day basis, are not only trustworthy and capable, but kept up-to-date with any relevant organisational changes that may need to be reported at relatively short notice.

    Sponsor licence change of circumstances FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

     

     

     

     

     

     

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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