Immigration Update: Changes to a Worker’s Start Date

Employers who sponsor migrants will know the difficulties that can arise when trying to establish the start date of employment for the person they are sponsoring.  There are often unpredictable delays that mean the start date initially envisaged cannot be met, such as administrative delays in the country the worker is entering the UK from.

The previous rules were unclear as to how a start date could be delayed, leaving employers wondering whether they would be able to continue sponsoring a worker.  Commencing from 9 November 2022, new Government guidance has clarified the options for moving the sponsored worker’s start date once an application had been submitted.

In essence the start date should be the date the employer expects the worker to start working for them if their application is granted. However, delays in the visa application process or changes in personal circumstances may mean that this date is no longer possible. This article will discuss why the date is needed and, following the guidance update, what an employer should do if it changes.

Why is a date needed?

When sponsoring a worker, the employer will provide the migrant with a Certificate of Sponsorship which will include a start date. The worker will then use the Certificate of Sponsorship to apply for entry clearance. The worker can only apply for entry clearance if their start date, as specified on the Certificate of Sponsorship, is less than three months away. If the date is more than three months away, then entry clearance will be refused.

If the start date needs to be changed before the application for entry clearance is considered, then the employer can add a sponsor note on the Certificate of Sponsorship. If the application for clearance is already being considered,, then the change can be updated on the Sponsor Management System (SMS) using the “Report Migrant Activity” function.

Starting before the start date

If the worker has obtained permission to enter and work in the UK prior to the start date recorded on the Certificate of Sponsorship, they do not need to wait until the start date to commence employment. The worker can commence employment immediately and there is no need to report that the start date has been brought forward.

That being said, the employer should note that date on any contracts and HR records for the worker to ensure accurate records are being held.

Starting after the start date

It may not always be possible for the worker to commence employment on the exact date specified in the Certificate of Sponsorship. However, once permission has been granted, the worker should normally commence the sponsored employment no later than 28 days after whichever is the latest of:

• the start date on their Certificate of Sponsorship (taking into account any changes to that date reported)
• the “valid from” date on the worker’s entry clearance 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

If the worker commences employment within 28 days then no changes need to reported. If the worker was not able to start employment at the end of this period then the employer must decide to either stop sponsoring the worker or, if they wish to continue sponsoring the worker, report on the reasons for delay. This report must be made within 10 working days after the end of the period and can be made on the SMS, again, under the “Report Migrant Activity” function.

Employers should be aware that the UKVI may cancel the worker’s permission if they do not feel the reason for the delayed start is valid. Examples of valid reasons are delays due to worker carrying out contractual notice periods for previous employers, administrative delays, illness or bereavement. But please note that the merits of each delay will be assessed individually. Employers should therefore carry out the requisite right to work checks, and any necessary follow ups, to assess whether the worker has retained permission to work following a change in start date.

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