COS salary vs actual salary

[MarkCa]

Hello,

I manage restaurants and we sponsored a few visas so far. One of the workers, who has 5 year skilled worker visa (no need to re-apply for Skilled Visa extension before ILR) has a salary of 37,500gbp per year, and this is written in his COS.

However, minimum requirement to score points at the moment for visa for him is 26,200gbp. He was on 37,500gbp per year for 2 years already (as per his COS), and now with 3 years remaining, I wanted to increase his salary to 40,000gbp per year.

However, he has asked me if he can get his base salary down to 26,200 and get the rest of it (13,800) as tips (TRONC) as this will have better tax rate for him and it will make him significantly higher net pay.

He does not need to score salary points again (as his next application is for ILR), and he would still fill the criteria of minimum required base salary for his visa type.

Would this be possible, or the fact that his COS in 2021 stated 37,500gbp is an issue? Is COS something that needs to be followed at all times (although salary increase would theoretically break it anyway) or just having the required wage to score points and then getting the rest as service charge/bonus is ok?

Finally, is any of this even relevant for his ILR application?

Thanks!

[Frontier Mole]

Simple answer is no. The minimum salary stated on the COS must be maintained, increasing the salary is not a breach. If you decide to re-issue an entirely new COS for the lower rate of pay and then he can apply again for a new visa, with all the costs involved. That would achieve his wishes.

Obviously it will be scrutinised and possibly seen as an issue which may result in the Home Office visiting or worse still a refusal.

In my personal opinion I would not get involved in any change or attempt to change as it places your licence at risk.

[MarkCa]

Thanks!

I have just checked this, it is the official guidance (link is safe to click):

https://assets.publishing.service.gov.u ... _v1.0_.pdf

On page 34, last paragraph says (S4.32.):

S4.32. You do not have to stop sponsoring a worker if you reduce their salary and
any of the following exceptions apply (although you must tell us via your SMS
account that you have reduced the worker’s salary):

- the worker otherwise continues to meet the salary requirements on the
route on which they are being sponsored

Am I correct then by assuming that if salary is reduced but still higher than minimum requirement I just need to report it in sms and then it is fine?

I would not agree to his proposal to go to the bare minimum (26,200), but 28,000gbp should be fine based on this?

If anyone could confirm that I understand this correctly that would be amazing!

Thanks!

[Frontier Mole]

The reason for the reduction in salary is tax avoidance not for any other reason. You as the employer are facilitating the avoidance, which will put you at risk as well as a potential for losing your licence. It is fraud declaring income under TRONC and it not exactly a difficult point to check.

If there was a general reduction is the salaries across the board I would be inclined to agree with your thinking, but that is not the case.