Latest changes to the Immigration Rules expand the ATAS requirement to certain Tier 2 and Tier 5 migrants and can affect HR compliance too.
The guidance on sponsoring workers and temporary workers has been updated to reflect these changes.
There has been an important update to reporting duties regarding the migrant worker’s employment start date too.
The Academic Technology Approval Scheme (ATAS) requirement which was previously applicable only to international students subject to UK immigration control will now be expanded to cover certain Worker and Temporary Worker routes.
Changes to the Immigration Rules affecting employment start date
The start date given on the Certificate of Sponsorship (CoS) must be the date the sponsored worker is expected to start their employment at the time the CoS is assigned.
An application to enter the UK cannot be submitted more than 3 months in advance of the work start date. The CoS must also be used for a visa application no more than 3 months after it was assigned.
How does this affect HR compliance?
If the worker has obtained permission to enter or stay in the UK and their start date is delayed by more than 28 days, to stay compliant you must normally stop sponsoring the worker and inform the Home Office via the Sponsor Management System (SMS).
You do not need to withdraw sponsorship if the worker is required to work out a contractual notice period with their previous employer and their conditions of stay allow this. In this case the work start date can be delayed by more than 28 days and must be reported to the Home Office.
A worker who is making a change of employment application, is permitted to work out a contractual notice period for their existing employer if they were legally working for that employer on the date of application.
The aim of the Academic Technology Approval Scheme (ATAS) is to prevent transfer of information, knowledge or technology which could develop, advance or support an Advanced Conventional Military Technology (ACMT) and Weapons of Mass Destruction (WMD) programme or means of delivery.
Up until now the requirement only applied to international students subject to UK immigration control who intended to study at postgraduate level in certain sensitive subjects. Such student must apply for an ATAS certificate before they can start studying in the UK.
From 9am on 21 May 2021 this requirement will also apply to certain workers and temporary workers.
Who is subject to the ATAS requirement?
The requirement applies to applications for permission to enter or stay in the UK submitted from 9am on 21st May 2021 if:
- The employer is sponsoring the worker on the following routes:
- Skilled Worker
- Intra-Company Transfer
- Government Authorised Exchange Worker
- International Agreement Worker.
- And if the employer has a Tier 4 (General) licence
- The role is in a relevant occupation code as specified in Appendix ATAS to the Immigration Rules
- The role includes an element of research at PhD level or above in a relevant subject area specified in Appendix ATAS, and
- The worker is not on the list of exempted nationals as specified in Appendix ATAS.
What should employers do?
If you hold a sponsor licence for the ICT, Skilled Worker, Tier 5 and Tier 4 (General) categories, you will be required to confirm on the CoS whether the ATAS requirement applies to the worker.
A check box will be introduced on the CoS for this purpose. Until this is available you must confirm this by adding a sponsor note to the CoS.
If the ATAS requirement applies to the worker, they must apply for an ATAS certificate from the FDCO Counter-Proliferation and Arms Control Centre before submitting their visa application for permission to enter or stay in the UK. a copy of the ATAS certificate must be included with the application and the employer must also keep a copy of the certificate or the electronic approval notice received from the FDCO on record.
It can take up to 4 weeks to process an application for an ATAS certificate. Therefore, it is important to plan ahead and choose a work start date accordingly.
Where the ATAS requirement applies, and it is not obtained the visa application will be refused and the Home Office may revoke the organisation’s sponsor licence.