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Scrap the nonsensical 28-day start date rule for sponsored workers
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Reading work visa sponsor guidance can be frustrating at the best of times, but particularly aggravating is paragraph S3.9:
You must normally stop sponsoring the worker and inform us via your SMS account if the start date is delayed by more than 28 days after whichever is the latest of:
- the start date recorded on the worker’s CoS [certificate of sponsorship]…
- the date the worker’s entry clearance (visa) becomes valid
- the date the worker is granted permission to enter or permission to stay
There is one exception in paragraph S3.10, “where the worker is required to work out a contractual notice period with their previous employer”. But that’s about it – no exception in the guidance for those whose start date is delayed by unplanned medical treatment, a flight cancellation or any other unexpected event which prevents a new hire from commencing their sponsored role. Mercifully, Home Office coronavirus concessions do waive the 28-day rule for those whose travel is impacted by pandemic restrictions, although that is only temporary.
Those exceptions aside, if you are outside the UK and your start date as a sponsored worker is delayed by more than 28 days beyond the start date on your immigration paperwork: unpack your suitcase and cancel your plane tickets, because you need to go through the entire application process all over again (including, of course, most of the costs).
The policy objective of paragraph S3.9 is, to my mind, unclear. Perhaps it was intended to stop people applying for their visa artificially early to start the clock running on the five years needed to qualify for settlement down the line. But it applies to all sponsored work routes, including temporary routes which do not lead to settlement. Or it could be tenuously linked to preventing sponsored workers being on unpaid leave for more than four weeks. Although, since the sponsored worker’s UK employment contract may not have commenced, logically they cannot be put on unpaid leave and are not absent from their role). I have not been able to come up with a compelling justification for the rule.
How rigidly the 28-day rule is enforced in practice is also not clear. The Home Office Business Helpdesk has reportedly waved through delays to start dates of more than 28 days in compelling circumstances. If such generosity can be offered by the Helpdesk to those in the know, this should be extended to all sponsors through updated guidance.
The Home Office recently confirmed to my firm following a freedom of information request that in the last two years it has not taken compliance action against any sponsor for breach of this rule. Even allowing for the pandemic and the lack of compliance visits, this is still surprising — and arguably calls into question the importance of having the rule in the first place.
The requirement in paragraph S3.9 is also notably absent from the Immigration Rules themselves, which perhaps explains the lack of enforcement. If the Home Office did decide to penalise a sponsored worker or sponsor for a delay to a start date of more than 28 days, that decision might be vulnerable to challenge as unreasonable through judicial review.
In short, the 28-day rule in paragraph S3.9, part 2 of the sponsor guidance needs to go — or at the very least be amended to soften its edges.