Sponsors seeking to increase their allocation of undefined Certificates of Sponsorship (CoS) from the Home Office can face significant procedural challenges, particularly in the care sector. In this article we explore the difficulties inherent in CoS allocation requests, the increasingly onerous further information requests from the Home Office, and offer practical guidance to assist sponsors in navigating these challenges effectively.

CoS allocation: what is it?

Sponsor licence holders must secure an allocation of undefined Certificates of Sponsorship (CoS) before being able to sponsor workers applying in the Skilled Worker visa category from within the UK. This includes extensions, changes of employment and switches from other immigration routes (such as Student, Graduate or partner dependant).

The Home Office grants CoS allocations on an annual basis based on the previous year's usage, but sponsors can apply for an increase at any point during the year based on anticipated business need.

There is a separate, 'defined' CoS, process for candidates applying from overseas. Defined CoS are requested on a case-by-case basis.

The process and challenges for requesting CoS allocation increases

A CoS allocation increase request is submitted via the sponsorship management system (SMS), which is the online portal through which sponsors make requests and notifications to the Home Office. Sponsors must provide detailed information to justify any request to increase their allocation, including the following for each worker and role requiring sponsorship:

• Full name, date of birth, nationality and current visa status of each candidate;
• Job title and summary of the job description;
• Choice of Occupation Code under which the candidate will be sponsored, which must be included in an eligible table in Appendix Skilled Occupations;
• Indication of salary and explanation of how this meets the threshold for sponsorship and going rate for the relevant Occupation Code. This may include reliance on "tradeable points" such as where the applicant meets the criteria for being a 'new entrant' or a relevant PhD holder.

The SMS sets a limit of 2,000 characters (including spaces) for the request and this is the only opportunity the sponsor has to provide all the above details. Where a sponsor is seeking multiple certificates (for example if lots of current employees have forthcoming visa expiries and require extensions) it is extremely difficult, if not impossible, to fit all the necessary details in the text box on the SMS. 

The Home Office will generally not consider 'speculative' requests for CoS where a candidate has not yet been identified and the sponsor anticipates a potential need for sponsorship for vacancies, which can create major issues for workforce planning.

Once submitted via the SMS, standard Home Office processing time is up to 18 weeks, which in most cases will be completely impractical and unworkable, prompting sponsors to pay a £350 fee to add priority processing to the request. 

Priority service and further information requests

Securing a priority service slot is a major logistical issue because the Home Office sets a limit of 120 priority service slots each weekday. Recent estimates suggest the Home Office receives tens of thousands of requests every day and the slots are taken up within minutes of the service opening at 7am each morning.

Even once successful in securing a priority service slot, which can take several weeks, this is not the end of the story. The five-working-day processing time is not guaranteed, and the Home Office is reaching out to sponsors, with increasing frequency, making onerous requests for further information and documents, including (amongst other things):

• Six months' bank statements for each account held by the business and its related entities;
• A company hierarchy / organisation chart showing where each sponsored role will sit;
• Information about how the sponsor will fund the proposed workers' salaries;
• Employment contracts for all migrant workers employed under the same Occupation Code;
• Evidence why the roles cannot be fulfilled by the sponsor's workforce; and
• Evidence of the genuine need for the vacancy, which can include a requirement to show executed additional contracts to provide services that are directly related to the CoS allocation request.

Where such requests are made, the Home Office will give the sponsor a deadline of five working days to respond, which is often a challenging deadline to meet given the volume of documents required. 

The Home Office may grant the CoS allocation request in full, grant a lower number where they are not satisfied that the need for all CoS has been made out, or refuse to grant any CoS at all. The sponsor is entirely in the Home Office's hands, and the decision cannot be challenged except by judicial review, which is an expensive and lengthy process; the only realistic option will be to re-apply and start the whole process again.

Knock-on effects of delays and refusals

The current challenges for sponsors in securing a CoS allocation increase are having major knock-on effects in workforce planning, compliance and the potential for employment law implications.

Where a business has existing workers with forthcoming visa expiries but no CoS available to assign to facilitate an extension, they will face the stark choice of dismissing the worker due to the loss of right to work or making an extension application that is not supported by a CoS while waiting for the allocation to be processed. The latter option will buy the applicant some time, but they will have a tight deadline by which they must upload a CoS or risk their application being rejected as invalid by the Home Office.

In these circumstances, the individual should retain the right to work in the UK while the application is pending, but the employer will need to take care to conduct an appropriate check and monitor the situation closely to be satisfied the right to work is not lost, for example by the Home Office rejecting the application. Employers risk liability for an illegal working civil penalty of up to £60,000, as well as action against their sponsor licence, where they fall foul of these requirements. 

Difficulties for the care sector

The challenges are not unique to any sector, but the care sector in particular faces a convergence of pressures that aggravate the difficulties. These include:

• Chronic workforce shortages and high turnover;
• Reliance on migrant workers to fill vacancies;
• Recent immigration policy changes preventing new care worker applicants from outside of the UK, increasing reliance on workers already in the UK; and
• Increased Home Office scrutiny with the sector now firmly in the Home Office's crosshairs and sponsor licence revocations at an all-time high.

There has been one positive development for the sector in this area in recent years: in the case of Hartford Care Group, the High Court found the Home Office's demand for contracts that guaranteed hours before granting a CoS allocation was irrational and unreasonable because such contracts essentially do not exist within the sector. This stands as a useful reminder that the Home Office can be challenged on these issues, but judicial review is not a very practical remedy as it is expensive and takes a long time to be concluded. 

Practical tips

Sponsors can guard against the pitfalls inherent in CoS allocation requests by taking the following actions:

• Implementing robust HR systems and ensuring there is a good record of past compliance so that any future CoS allocation request does not raise a red flag;
• Requesting allocations well in advance where possible;
• Providing as much information as possible in the initial request, including how criteria for sponsorship are met;
• Preparing supporting evidence on the assumption that the Home Office will push back and request this; and
• Seeking specialist legal advice, particularly where previous requests have been refused or reduced – this can help identify what further evidence may be required and how best to present the case.

How we can help

CoS allocation requests can be complex and time-consuming, with significant operational implications for the business and personally for workers if a request is refused. We have specialist expertise in dealing with these requests, including for care sector sponsors. If you are a sponsor needing assistance in this area, please get in touch with a member of our Immigration Team.