The Creative Worker route has become increasingly popular as a more practical and convenient alternative to mainstream sponsored work routes such as the Skilled Worker route, which now has restrictively high salary requirements. In this article, we highlight key compliance pitfalls under the Creative Worker route and offer tips on how to avoid them.
A Creative Worker visa is the main immigration route to the UK for individuals (actors, composers, dancers, entertainers, film crew, musicians) within the entertainment and creative industries, who will be working in the UK on a temporary paid basis in a specific creative role. The Creative Worker route replaced the 'Tier 5 (Temporary Worker) Creative and Sporting' route.
The eligibility requirements for the Creative Worker visa were updated on 16 May 2024. Read more about these changes in our previous article.
Case study
Jack White is a famous actor. He is flying into the UK in two days to work on an upcoming film. Jack's employer, Films Now Ltd, has an A-rated sponsor licence and promptly issues a Certificate of Sponsorship (CoS). Jack is an Italian national and relies on the 'Creative Worker Visa Concession'*. He enters the UK using the passport e-Gates.
*The Creative Worker Visa Concession, also known as the 'CoS Concession' allows non-visa nationals (such as EEA nationals, Australians and Canadians) to travel to the UK for stays of 3 months or less without requiring a pre-approved visa. Instead, the individual travels to the UK and before crossing the UK border, a border officer will review the assigned CoS and authorise entry.
Common compliance failures relating to the Certificate of Sponsorship
- Before rushing to assign the CoS, Jack's sponsor should have considered the applicability of any of the Codes of Practice, which are found in Appendix Creative Worker Codes of Practice of the Immigration Rules. This is because, for certain creative roles, the Codes dictate the specific criteria which a Creative Worker applicant must satisfy to confirm their eligibility for the proposed role. This must be assessed by the sponsor.
- Jack's sponsor is required to tick a box on the CoS to confirm compliance with the relevant Code of Practice and enter additional information in the free text box. It will be insufficient to simply declare in this box that the Code of Practice requirements are met. Instead, the sponsor must confirm how they are met. There is a character limit so any additional information should be added by way of sponsor note.
- Jack's sponsor should have checked to ensure that he is paid at least the National Minimum Wage for the number of working hours each week, in line with the National Minimum Wage Regulations 2015 and the Working Time Regulations 1998. Additionally, despite any travel expenses, accommodation allowances or per diems intended to be recouped in part or in their entirety, Jack must continue to be paid in line with both Regulations. In many cases, this would require some detailed calculations before finalising the CoS. If Jack will be self-employed, his CoS should state this clearly and suitable evidence of his employment status should be retained on file.
Common compliance failures relating to entry to the UK
- Because he entered using the e-Gates, Jack has technically entered the UK as a visitor. He should have seen a UK Border Force officer, who would have placed a stamp in his passport*.
- Jack cannot work in the role stated on his CoS (or any other work) while he is in the UK with visitor status. In most cases, he will need to leave and re-enter the UK in order to correctly activate his visa.
- A right to work check would need to be performed by his employer after he correctly re-enters the UK and before he commences his work activities.
*EEA and Swiss nationals coming to the UK are now eligible to apply for an eVisa using the 'UK Immigration: ID Check' app. If Jack applied for an eVisa in advance, he could have entered using the e-Gates.
Common compliance failures relating to record keeping requirements
- Documentary evidence of how the requirements are met should be retained in accordance with Appendix D: guidance for sponsors on keeping documents. Appendix D cross-refers to the Codes of Practice, so a sponsor must check both resources to ensure they comply with relevant parts.
- In practice, after the CoS is assigned, the Home Office will have made notifications to relevant trade unions and guilds. These institutions may request information and evidence from the sponsor, such as Jack's qualifications, to demonstrate his seniority and grade. Sponsors must ensure they have these on file.
- If no Code of Practice applies, a sponsor must tick to confirm that the role is otherwise eligible to be sponsored on the Creative Worker route because the worker will be making a unique contribution to creative life in the UK. Separate documentary and record-keeping requirements would apply in this instance.
Tips to avoid compliance breaches
- Remember to cross-check the Codes of Practice before assigning a CoS to ensure that, where a Code is applicable to the proposed role, any necessary steps have been followed and documentation retained on file to maintain full compliance, e.g. proof of qualifications.
- Where applicable, be able to demonstrate and evidence how a Creative Worker will make a unique contribution to the UK's labour market e.g. proof of international status, requirement for continuity purposes or other personal attributes. The Home Office could ask to view such evidence during an audit.
- Beyond the roles covered by the Codes of Practice, understand which other roles are eligible for sponsorship under the recently updated Appendix Skilled Occupations and Immigration Salary List, noting that the update includes a significant reclassification of the job codes so any codes used for Creative Workers previously might be different for sponsorships now.
- Obtain details of payment arrangements in advance, so that this can be correctly entered onto the CoS and tracked throughout the period of sponsorship;
- For multiple engagements with the same sponsor/employer, review the engagement schedule in advance to calculate the overall length of multiple engagements to ensure the correct visa type (CoS concession or full visa) has been identified as changes down the line may not be straightforward.
- Monitor the engagement schedule throughout the period of sponsorship in case of booking changes, paying particular attention to the duration of any gaps in between paid engagements which have potential to breach the conditions of the visa and trigger the need to withdraw sponsorship. Here, understanding and planning to utilise the 'stop-the-clock' rule could be a practical solution to consider ahead of time.
- Ensure the Creative Worker understands what steps they must take to correctly activate their visa on entry to the UK and follow up with them without delay to check this has been completed correctly.
- Establish a clear line of communication with the Creative Worker and the employer (if the employer is not the sponsor).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.