- BY Nick Gore
Extending a skilled worker visa without a certificate of sponsorship
Employers generally, and organisations which hold a sponsor licence in particular, are told over and over again that any workers must have the correct immigration permission in order to undertake a role.
Considering the messaging, and that the consequences of employing illegal workers include the revocation of a sponsor licence and up to a £60,000 fine per illegal worker, you can understand why organisations are nervous when a migrant worker’s permission is due to expire.
Hopefully, most organisations should know that providing the worker submits a valid immigration application in country, they will hold section 3C leave which means the worker’s immigration permission can continue, past any expiry date, until a new decision is made.
However, the UK immigration system does not operate in an ideal world. Before a skilled worker can extend their permission, they need a certificate of sponsorship and in recent years there have been significant delays in granting certificate of sponsorship requests. Often, this happens when there is a sudden upsurge in submissions due to upcoming changes, such as the days before the minimum salary for skilled workers is due to increase, or when the immigration health surcharge is due to go up.
Where these factors are impacting processing times, the timing for a skilled worker extension application can become urgent, sometimes leaving skilled workers in a situation where they need to submit an extension application before their sponsoring organisation has a certificate of sponsorship in place.
So what can be done when a certificate of sponsorship is not in place before the skilled worker’s permission expires?
Skilled workers extending their permission
In an ideal world, the usual process for skilled workers extending their permission is that their sponsoring organisation has a sponsor licence in place, and is able to issue a new certificate of sponsorship in advance of the skilled worker making an extension application. The certificate of sponsorship is valid for up to three months, meaning that the skilled worker can submit their extension application, with the relevant certificate of sponsorship number, in that timeframe.
The guidance sets out:
The applicant must have a certificate of sponsorship (CoS)… The reference number for the CoS should be provided in the application… If you are not satisfied the sponsor has assigned a CoS to the applicant, you may reject the application.
Once the certificate of sponsorship is assigned, and the application submitted, the skilled worker should then be able to rely on section 3C leave, and in most cases, continue to work for the sponsor.
However, as noted, in reality skilled workers and their employers have many other demands on their time and attention. Skilled workers may not realise their permission is coming to an end soon. Sponsors have other responsibilities apart from the onerous sponsor duties and may not pick up on imminent visa deadlines. There may be an assumption that the UK immigration system is straightforward and quick (ha!). The timing for an extension application can then slip and become urgent. The question then becomes, how quickly can the organisation get a certificate of sponsorship?
Home Office processing times
The processing time for a sponsor licence application is up to eight weeks. If an organisation needs further certificates of sponsorship, they can make a request, which takes 16 weeks to process.
But as noted, in recent years there have been processing delays in both sponsor licence applications and certificate of sponsorship requests.
Sponsors, reasonably, could use the priority services in these circumstances. The sponsor licence application can be expediated to 10 working days, and the certificate of sponsorship request to five working days, for additional fees.
However, even the priority service can become inundated with requests. To expediate a certificate of sponsorship request there is a limit of 60 applications per day (across the whole country). There can sometimes be thousands of requests. The request process requires sending an email, which are actioned first come first serve on each working day. This leads to the perverse system where potentially thousands of sponsors are waiting until the clock strikes 09.00 for the chance to give the Home Office extra fees, and expediate the process. At busy times, most will not be able to.
This means that a worker’s permission may be due to expire and they may not have a certificate of sponsorship, which is normally required in order to make an extension application. What to do?
Exemption to having a certificate of sponsorship
The Home Office do appreciate that delays on their end can cause severe consequences for applicants. They can allow skilled workers to submit an application without certificate of sponsorship details. The guidance sets out:
If the applicant has not supplied the reference number, they must provide an explanation… If the reason the sponsor has not yet assigned a CoS is because of delays by UKVI (for example, a delay in processing a sponsor licence application or a request for a CoS), you may exceptionally place the case on hold pending the outcome.
Workers should be aware that the Home Office caseworker has discretion as to whether the delay is because of UKVI, as opposed to the sponsor.
Case Study 1
Sponsor A wants to extend the permission of Agatha, a skilled worker they employ. They realise six weeks before Agatha’s leave expires that they don’t have a certificate of sponsorship on account.
Sponsor A requests a further certificate of sponsorship, and seeing the processing times, decides to use the priority service.
The sponsor requests the priority service, but, despite requesting the service at 9am everyday, still isn’t within the first 60 applications.
Starting to panic, Sponsor A speaks to the Business Helpdesk, and makes clear the urgency in the daily requests for the priority service, but still can’t receive the service.
Eventually Agatha submits their application, explaining in her application that the reason there is no certificate of sponsorship in place yet is due to the Home Office processing times and limited availability of the priority service, which the Home Office accept and place Agatha’s extension application on hold.
The certificate of sponsorship is granted, Sponsor A assigns it, and Agatha sets out the details to the Home Office. Agatha’s application is approved.
The above processing delays would be a good example of when the delays are because of the Home Office, despite the best efforts of the sponsor.
The Home Office may also delay applications or requests by asking for further information about the role or about the organisation. Hopefully this should be considered a delay because of UKVI, but could equally be seen as the Home Office taking the appropriate checks due to an application or request lacking the required details.
However, some delays impacting a skilled worker extension application are not the fault of the Home Office and in such situations, the person may need to leave the UK if their leave expires.
Case Study 2
Bob wants to extend his permission and speaks to his employer, Sponsor B.
Sponsor B say they have a CoS in place so there is no need to worry.
Bob checks in with his sponsor and they tell him everything is in hand.
Bob realises that his permission expires today. He rings up Sponsor B to ask for his CoS details so he can submit. Sponsor B tells him that actually there aren’t any CoS on account.
Bob submits his application and hopes for the best. Sponsor B requests a further CoS.
The Home Office do not accept that the delays are due to the Home Office. Bob’s application is likely to be refused and he may have to leave the UK.
Using the exemption in a skilled worker extension application
In the application form, skilled workers can select that there they do not have a certificate of sponsorship. They should then be able to provide an explanation, submit the application and section 3C leave can be activated.
After submission, evidence can be provided. If relying on the above exemption, it is advisable to add any evidence of the delay, such as multiple emails being sent to obtain the priority service. When the certificate of sponsorship is assigned, evidence of this can also be provided.
Being placed on hold does mean that the application will be delayed. The worker will not be able to leave the UK without their application being treated as withdrawn. The Home Office may also cast a weary eye over the sponsor and question whether it has the appropriate systems in place, as to let the application proceed without a certificate of sponsorship. This could heighten the risk of a compliance visit.
However, considering time may be of the essence, relying on this exception means that the worker should be able to continue in their current role, their continuous residence would not be broken for the purposes of settlement, and crucially, they can remain in the UK whilst the situation is resolved.
This can be a significant advantage for the worker and the sponsor. The lack of a certificate of sponsorship in a skilled worker application does not have to lead to disaster therefore, although it should be treated as a last resort.
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