Changes to a sponsored worker's employment

Changes to a sponsored worker’s employment

On February 16, 2022 | In Sponsor Licence | By A Y & J Solicitors

Will changing the sponsored employee’s job duties affect your licence?

Introduction

Sponsors are under an obligation to ensure that they provide accurate information about the job role for which they are assigning a Certificate of Sponsorship. 

They are also under a duty to report (to the Home Office) changes to the role, as and when they occur. 

In some cases, a change in job role, even within the same organisation, can mean that the sponsoring employer needs to assign a new Certificate of Sponsorship for a Change of Employment visa application.

Consequences of not reporting changes or failure to apply for a new visa when required, can lead to a person’s visa being curtailed or cancelled and the sponsor may even have their licence suspended (with a view to revocation), for failure to comply with their sponsor duties.

This blog looks at what happens when someone changes role or duties for the same employer – either on a temporary or long-term basis.

We also discuss what would happen if a migrant was being sponsored under the incorrect SOC for the role in question.

What information is required to establish the job role?

In order to know if a change has occurred, you need to know what role the person was sponsored to do in the first place.

This information is contained on the Certificate of Sponsorship (CoS). The CoS is a virtual document issued by the sponsor to support a skilled worker visa application.

The CoS has a “job summary” field, where the sponsor can enter a full or abbreviated summary of the day-to-day duties and responsibilities of the role. As there is a 1000-character limit in this field, it may not always be possible to enter each and every line of the job description, but the job summary should give a good indication of the scope of the role and match the internal job description for the post.

The Certificate of sponsorship also has a field where the sponsor can enter a 4-digit code, known as a “Standard Occupational code” (SOC).

The full list of SOCs can be found in the Home Office rules (under Appendix Skilled Occupations). Only roles that fall under eligible SOCs can be sponsored for Skilled Worker visas. These are roles that fall at RQF level 3 (equivalent to A level) or above (with the exception of any SOC that falls under a skill level concession).

Reporting changes to the duties – 10 working day deadline

Sponsors must report a change to a sponsored migrant’s job role within 10 working days of the change through the Sponsor Management System (SMS) portal. This includes temporary and permanent changes.

Commonly, changes to a person’s job role will be decided and approved by the individual’s line manager or a senior manager within the business. These staff members will not always be the same people who have access to the employer’s SMS portal.

This means that there must be a robust line of communication between the line manager and the SMS user who is responsible for reporting changes within the relevant timeframe.

Example 

A sponsored worker is employed as a junior sales manager. After a successful 12-month period working for the business, they are promoted to senior sales manager. The role still falls within the same SOC.

The sponsor is required to report the (permanent) change on the sponsor management system, within 10 working days of the promotion becoming effective.

What if the change is only temporary – do I still need to report?

Yes, even temporary changes to the job duties still need to be reported.

Ongoing monitoring of a sponsored workers day-to-day duties is very important to stay compliant.

Sometimes, people’s roles change organically over time, but it is still essential for the sponsor to ensure that the job the person is doing matches up with the duties stated on the Certificate of Sponsorship (and/or any subsequently reported changes).

Example

A sponsored worker is employed to lead sales and strategy in one of the departments, and this has been outlined on the CoS. For a 3-month period, they will be required to work on a product launch, devising marketing opportunities for the specific product in a different department of the business. There is no change in SOC.

The sponsor will be required to report this (temporary) change on the sponsor management system, within 10 working days of the change becoming effective.

What if the changes lead to a change in SOC?

If the change in role leads to the job falling under a different SOC, then the sponsor is required to assign a new Certificate of Sponsorship and the candidate must apply for a new (Skilled Worker) visa – this is known as a “Change of Employment” application.

Example

The candidate is employed as a Software Developer and has been sponsored for 2.5 years. They are demonstrating excellent leadership and technical skills and the business have also invested heavily in management training. The company decide to promote the Developer to an IT Project Management role, where they will lead project delivery on behalf of the business. The SOC will change from “2136 Programmers and software development professionals” to “2134 IT project and programme managers”.

The sponsor must assign an undefined Certificate of Sponsorship for the new role, and the candidate must apply for a new visa (make a Skilled Worker Change of Employment application). Only once the new visa has been approved can the candidate start working in his new position.

What is the process for a Change of Employment application?

Certificate of Sponsorship – Change of Employment

The sponsor will normally have an “annual quota” of Certificates of Sponsorship to assign to migrants each year. If the sponsor does not make a request for any certificates, or if they use up their quota, it is possible to ask for an “allocation increase”.

The service standard for making a Certificate of Sponsorship annual quota request (or quota increase request) is 18 weeks. There is a priority service available for sponsors, where the decision can be expedited to within 5 working days. The priority service costs £200. Note that the fee is not £200 per Certificate requested – rather, £200 for expediting a quota request (regardless of the number requested at one time).

Do I need to pay for a new CoS?

As the sponsor, you will need to pay for the new CoS, which includes:

  • Certificate of Sponsorship
  • Immigration Skills Charge (where applicable)

Skilled Worker Change of Employment visa application

Once the Certificate has been granted, it can be assigned to the candidate. The certificate will contain all the candidate’s personal details and the details of the new role.

The applicant will then need to submit an online (Skilled Worker application) form and upload supporting documents onto an online portal, in support of their application. Their application will not be processed without a valid Certificate of Sponsorship from the employer.

Having submitted the application online, applicants will generally attend a physical appointment to enrol biometrics at a UKVCAS appointment centre. However, some applicants may be eligible to verify their ID using the Government approved app (and do not need to attend a physical appointment).

The service standard for a Skilled Worker Leave to Remain application is 8 weeks. However, there are priority services available:

  • Priority Service: 5 working days
  • Super Priority Service: 24 working hours

Are there visa fees for a Change of Employment application?

The visa application will attract fees including:-

  • The Visa fee (currently up to £1408); 
  • A Biometric Enrolment fee (currently £19.20); and
  • The Immigration Health surcharge (£624 per year, unless exempt).

The exact visa fee/immigration health surcharge will depend on the visa length applied for, and whether or not the role is a Shortage Occupation list job or Health and Care role.

In some cases, the payer may be eligible for a partial refund of the immigration health surcharge, for any duplicate time on the visa. 

Example

Someone originally sponsored from January 2021 to January 2024, who makes a Change of Employment application in January 2023 can benefit from a refund of “duplicate” immigration health surcharge for the period January 2023- January 2024 (1 year). They must pay any up-front immigration health surcharge due and wait for the refund after the application has been approved. 

Do dependants need to apply with the main applicant?

Visa dependants (i.e. partners and children under 18) who hold leave as Skilled Worker dependants do not need to apply for a Change of Employment, unless their visa is coming up for expiry. They must apply for leave to remain before their visa expires, but they do not need to make an application every time the main applicant makes a Change of Employment application.

Example

The main applicant’s visa was issued from January 2021 to January 2024 and their dependants’ visas expire on the same date. The main applicant makes a Change of Employment application in January 2023. The dependants have visas until January 2024, so they do not need to apply for leave to remain at the same time. They will need to renew their visas before they expire in January 2024.

What if I discover that I assigned an incorrect SOC?

A Certificate may have been assigned with the incorrect SOC as sometimes sponsors make mistakes. This could happen if the level 1 user selected the wrong code, due to lack of knowledge of the role. This could also happen if a typo was made, when selecting the code from the drop-down menu on the Sponsor Management System.

Whatever the original reason for the error, it is essential that, once identified, the sponsor takes steps to rectify the mistake. The right way to correct the error would be to apply for a Change of Employment, indicating the correct SOC on the new Certificate of Sponsorship.

Some sponsors might ask “should we wait until extension is due, to correct the SOC”? 

The answer is simply NO – apply immediately to correct such a serious mistake and avoid being discovered in breach, by the Home Office.

The sponsor may be worried that by making such an application, it could draw negative attention to the licence or even lead to direct compliance action. In reality, if the sponsor makes timely correction, the Home Office would be unlikely to take action, for this reason alone. 

If such a critical error is discovered before any attempt to rectify has been made, it would be more likely that the issue would escalate into compliance action.

What if I fail to report a change / employ someone under the wrong SOC?

If the Home Office visit the sponsor or otherwise discover the breach (failure to report or failure to make a Change of Employment application, where required) this could lead to compliance action being taken against both the migrant and the sponsor.

The migrant’s visa could be curtailed (cancelled/cut short) and the sponsor could have their sponsor licence suspended, subject to further investigation.

Note that it is a mandatory ground for revocation of the sponsor licence, under Annex C1 (q) of the sponsor compliance guidance, to employ someone in a role other than the on the CoS, unless the changes are permitted and have been reported to the Home Office in line with the rules.

Conclusion

As an employer you are permitted to change a migrant’s role, but you have seen that strict record keeping and reporting duties apply, in the event that you do change a sponsored migrant’s duties. If the role changes so significantly that the it falls under a different SOC, you must make a Change of Employment application before the migrant changes job.

It is in the interests of the sponsor to check all certificates assigned and to seek help where needed, to audit their general HR records.

A Y & J Solicitors are detail oriented and competent immigration lawyers. We deal with your matter with integrity and care. 

If you have questions about reporting changes to a sponsored worker’s role or need general support or training on using your sponsor management system, we are ready to help. We can also help to accurately assess the viability of your sponsorship plans and help you to assign a Certificate of Sponsorship correctly, so you and your sponsored worker(s) do not face compliance issues later down the line.

Contact us for the support you need.

A Y & J Solicitors

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