Can I Make Amends to a Certificate of Sponsorship Once Assigned?
If you are an employer sponsoring non-EEA nationals, you will already know how much is involved in ensuring that your business remains compliant with the Home Office’s rules. This is essential because any breach rules may lead to your sponsor license being downgraded, suspended, or even revoked. One of the keys to success with sponsor license compliance is putting in place robust HR processes and systems which ensure a standard and consistent approach to managing overseas employees. And with the end of free movement from 1st January 2021, this is going to become even more important as new EU/EEA staff will be subject to the same immigration rules as non-EEA employees currently are. In this article, we will discuss one area of sponsor license compliant management, specifically whether it is possible to change a Certificate of Sponsorship once it is assigned.
Amending a Certificate of Sponsorship
Initial amendments to a Certificate of Sponsorship (CoS) are completed on the Sponsor Management System (SMS), but only before it is ‘assigned’. A CoS contains information such as the:
- CoS status
- Home address
- ID numbers
- Work dates
- Work address
- Employment in the UK
- Passport number
- Family name
- Given name(s)
- Date of birth
Once this information is entered on the ‘Confirmation of saved CoS’ screen, users are presented with five options; Exit, Link, Assign, Amend, and Delete. At this stage, you can press ‘Amend’ and make corrections to the CoS as required. Once the assign button is pressed, the option to amend is no longer available.
Once a CoS is assigned, if a minor correction needs to be made, you can add a ‘sponsor note’. If you notice a serious mistake (e.g. you have entered an incorrect nationality, tier category, name, or date of birth), you may need to withdraw the CoS and create a new one. If you are unsure what to do, please feel free to contact our immigration lawyers.
Will my sponsored employee need to apply for a new visa if their role changes?
If you are making a change to a sponsored employee’s role title or pay, what needs to be done will depend on the extent of the changes. The immigration guidance for sponsored employees states that a ‘change employment application’ must be made if they are remaining with the same employer but:
- there is a change to their core duties which means they change jobs and the new job is in a different Standard Occupational Classification (SOC) code to the one stated on their CoS (this does not apply if the SOC Code for your new job has only changed because of reclassification within the SOC system by the Office for National Statistics) or
- they have been working in a shortage occupation and are remaining with the same sponsor, but there is a change to their core duties such that they have changed jobs and their new job is not on the shortage occupation list; or
- they were earning at least £159,600 (or the equivalent threshold that applied when they made their application), and their salary is reduced to an amount that is lower than that threshold.
In other words, if these circumstances apply, you will not simply be able to change the CoS; the member of staff will need a new CoS and will need to apply for a new visa.
The immigration guidance then goes on to clarify that a ‘change of employment application’ is not needed if:
- they are remaining with the same employer and change jobs to a different job within the same SOC code, or they are moving under TUPE (or similar) protection due to a
- takeover, merger, de-merger or any other circumstances in which TUPE is triggered; or
- they are undertaking a professional examination(s), for example, an Objective Structured Clinical Examination (OSCE) or Professional and Linguistic Assessments Board (PLAB), to assess whether their skills meet UK standards before they start working for you, where this is a regulatory requirement of the job shown on the Certificate of Sponsorship, and they continue to be sponsored during such period; or
- their salary is reduced below the lower threshold, or below £159,6000
- their job changes within the same SOC code
If a new CoS is not be required, as an employer you are still required to report any significant changes in employment circumstances, “such as promotion or change in job title or salary (but not annual pay rises or bonuses) or a change in employment location or duration”.
Making amendments to the Biometric Residence Permit (BPR)
Sponsored staff in the UK need to report certain changes to ensure their BRP is kept up to date (even if they have applied for a BRP and are still waiting for a decision). Changes to name, nationality, facial appearance, date of birth, gender, criminal convictions, separation from their partner, and if one of their children has stopped living permanently with them, must be reported (by the member of staff themselves) within three months, or there is a risk of them receiving a £1,000 fine or curtailment of their visa.
Other sponsor license holder’s reporting duties
In addition to keeping up to date records on sponsored, employers are also required to inform the Home Office of certain events relating to foreign workers, including in the following situations:
- If an employee does not turn up for their first day of work; or
- If an employee is absent from work for more than ten working days, without your reasonably granted permission; or
- If employment ends (including if they resign or are dismissed) or any registration they need to work in the UK (such as with a governing body) ends;
- You have information which suggests the employee is breaching the conditions of their leave.
Understanding both your sponsor license compliance requirements and your employee’s work visa obligations when it comes to changes or amendments is essential to ensure ongoing compliance. If you are unsure whether your business would pass a Home Office compliance visit, speak to an immigration Solicitor in the UK who can check your processes and carry out mock audits to find potential problems and recommend solutions.