ILR and Delayed worker's start date more than 28 days

[AlefMim]

Hi,

I know this topic has been discussed previously but still I'm confused. Any help and clarification would be much appreciated.

Here is an example of my-self immigration history under skilled worker route:

Entry Clearance granted: 27/8/2022
CoS start date of work: 1/9/2022
Physical Entry to UK: 1/10/2022
actual start to work: 5/10/2022

As you can see, I have started my employment by more than 28 days delay (At a time I didn't know the 28 day rule) but I informed my sponsor and even they didn't tell me about this rule and they were ok with my delayed start date.
I'm worried about the fact that how it can affect my future ILR application and is there anything which I can do regarding that?

This paragraph is from the guidance for sponsors in Home Office website:
Sponsor 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 (including any amendment to that date you have told us about via SMS while the worker was awaiting a decision on their application)
• the date the worker’s entry clearance (visa) becomes valid
• the date the worker is granted permission to enter or permission to stay

Apart from that, this delay can be even ground for refusal for entry clearance / leave to remain.

I have been working since then and Home Office haven't cancelled my visa yet. Probably due to the fact that the sponsor didn't inform the home office.

Now, My question is, How this can affect my future ILR application and is there anything that I can do now to prevent that? Do I have to notify Home office? I'm confused and worried!

[zimba]

There is no such thing under the immigration rules. What you quoted is from the sponsor's guide that explains their duties. This does not affect your ILR as your sponsor did not stop sponsoring you. If you read the document, you understand that the UKVI treats this on a case-by-case basis. Mostly none of these issues come up at all. Your ILR qualifying period is also based on your visa validity period and not when you enter the UK or start your work.

S3.11. If the worker does not start employment by the end of this period, you must either: • tell us the worker’s new start date and the reasons for the delayed start, if you wish to continue sponsoring them; or • stop sponsoring the worker

S3.12. In either case, you must report this by the end of 10 working days after the 28-day period using the ‘Report migrant activity’ function in the SMS.

S3.13. If you wish to continue sponsoring the worker, you should be aware that UKVI may cancel the worker’s permission if they do not consider there is a valid reason for the delayed start. You must therefore ensure you carry out a right to work check before they start their employment, and any follow-up checks as required. If the worker tells you their permission has been cancelled, you must stop sponsoring them and report this within 10 working days via your SMS account.

S3.14. Acceptable reasons for a delayed start may include:
• travel disruption due to a natural disaster, military conflict or pandemic
• the worker is required to work out a contractual notice period for their previous employer – if the worker is in the UK, their conditions of stay must allow them to do this
•the worker requires an exit visa from their home country and there have been administrative delays in processing this
• illness, bereavement or other compelling family or personal circumstances

S3.15. This is not a comprehensive list and each case will be judged on its merits.

https://assets.publishing.service.gov.u ... 1.0___.pdf

[AlefMim]

Hi Zimba,

Thank you for detailed response, I do appreciate it.
Following your reply, I have 2 more questionsm would be nice of you if can answer them.

1- I understand that it was my sponsor duty to notify Home office and stop sponsoring me. However, apparently one of the requirements of ILR is that the person has to comply with conditions with his previous visas. the fact that in the application form which I filled for the visa I specified 1/9/2022 as a first day of work but I actually started 5/10/2022, wouldn't be considered as not being compliant and a possible ground for refusal?

In this link:
https://www.gov.uk/guidance/immigration ... or-refusal
in the section of:
Section 5: Additional grounds for cancellation of entry clearance, permission to enter and permission to stay
it says:
Worker does not start work or ceases their employment
9.27.1. A person’s entry clearance or permission on the Skilled Worker, Intra-Company, Global Business Mobility, Representative of an Overseas Business, Scale-up Worker (subject to paragraph 9.33.1.), T2 Minister of Religion, International Sportsperson or Temporary Worker routes, may be cancelled if:
(a) they do not start working for their sponsor; or
(b) they or their sponsor confirm that their employment, volunteering, training or job shadowing has ceased or will cease before the end date recorded on the Certificate of Sponsorship; or
(c) the start date for the job, as recorded in the Certificate of Sponsorship, is delayed by more than 28 days; or
(d) they cease to work for their sponsor.



2- the second questions is that, The Home Office updated the Sponsor Guidance on Workers and Temporary Workers on 9 November 2022 and relaxed that 28 day rule a bit.The sponsor guidance which you shared, is valid from 9 NOV 2022 onward.
the date of my first visa application is before updating the sponsor guidances by Home Office regarding 28 day rule of starting to work.I checked the archive of the sponsor guidances from Home Office which is valid before 9 NOV 2022, and in the same section and there was none of the S.13 , S14, S15 clauses.
It only mentions:

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 (including any amendment to that date you have told us about via SMS while the worker was awaiting a decision on their application)
• the date the worker’s entry clearance (visa) becomes valid
• the date the worker is granted permission to enter or permission to stay

S3.10. An exception to this is where the worker is required to work out a contractual notice period with their previous employer (and, where the worker is in the UK, their conditions of stay allow them to do this). If, as a result of working out a contractual notice period, the start date will be delayed by more than 28 days (as defined in the previous paragraph), you must notify us via your SMS account. If you know the worker will need to work out a contractual notice period, you should, as far as possible, factor this in when you enter the start date on the CoS (but remember that the worker cannot apply for permission more than 3 months before the start date on the CoS).

I don't know which guidance would be considered in my case and It's a bit vague for me.

Sorry for taking your time. it would be nice of you if you could answer my above questions.
thank you in advance.

[zimba]

1. What you quoted is grounds for cancellation of a visa, not refusal. Your visa has not been cancelled (yet). It is up to the UKVI to make such a decision if deemed necessary which often only happens when the breach is serious. You are overthinking this

2. The latest guide is the one to consider. I repeat that that guide is merely for sponsors to follow there. It is the job of the sponsors to follow that and act when necessary. Your sponsor has not decided to stop sponsoring you and exceptions often apply. You are overthinking this whole thing. You do not need to be super paranoid

[AlefMim]

I agree, I'm overthinking too much sometimes
After your reply, I'm much more relaxed.
Thank you for your time and reply again.

[BashirB]

Also consider that it is for your sponsor to inform HO of your delayed start date. Many don't bother and this may have been the case as well.

The only "formal" document on record where evidence of late start are your timesheet or payslip, if you were not paid in full for October. Both are internal employer documents. The bank statement and payslip for October will not be needed when you are submitting forms for further leave to remain or ILR a few years down the line.