Out-Law / Your Daily Need-To-Know

Coronavirus: immigration implications for UK employers

Out-Law Guide | 02 Jun 2020 | 10:37 am | 15 min. read

Restrictions on global movement imposed by various countries in response to the coronavirus pandemic are creating significant immigration law challenges for UK employers and sponsoring universities.

The UK Home Office has introduced a variety of relaxations to cater for these challenges. Initially, these primarily related to China and Chinese nationals, but they have now been extended to cover all nationalities. However, a number of practical issues for both sponsors and individuals have still not been addressed and the situation is continually evolving. The current guidance has now been extended and covers the period to 31 July for most, but must be monitored closely for updates as the situation develops.

The Home Office has published guidance on immigration provisions for UK visa applicants and temporary UK residents. It has a coronavirus helpline: 0800 678 1767 or [email protected] Please note that the Home Office will only speak to an employer regarding an individual with that individual's written consent.

Some UK Visa and Citizenship Application Centres (UKVCAS) will reopen for existing customers on 1 June 2020. Customers can check online which UKVCAS centres are open.

Initially the UKVI will not be offering the priority or super priority service at these centres. The focus at present is on delivering services safely and effectively. This will be kept under review and we will update our guide once we have further information.

Visa holders in the UK

Extensions

The Home Office has provided reassurance that those in the UK legally but whose visa is due to expire, or has already expired, and who cannot leave due to the coronavirus outbreak, will not be regarded as an 'overstayer', or suffer any detriment in the future.

Initially, the Home Office announced that those whose visas expire between 24 January and 31 May and cannot leave the UK are eligible for a visa extension to 31 May 2020. On 22 May, this deadline was extended to 31 July 2020. The deadline for making an application from the UK to switch to a visa that would normally require the applicant to apply from their home country has also been extended to 31 July 2020.

Anyone who already had their visa extended to 31 May 2020 under the previous guidance will get an automatic further extension until 31 July 2020.

Those affected, of all nationalities, must complete the Home Office Coronavirus Immigration Team's online visa extension application form, which requires a reason for why an extension is required.

We understand that those successful will receive confirmation stating: "Your leave has been extended under existing conditions until 31 July 2020. You will not be regarded as an overstayer or suffer any detriment in any future applications. However, you must make plans to leave as soon as you are able to do so. This will only apply where you hold an existing valid visa which has already expired or is due to do so between 24 January and 31 July".

This extension would appear to be intended for those who cannot otherwise extend or switch to another category in the usual way and who did not intend, or were not eligible, to remain in the UK long term were it not for the ongoing pandemic.

Hennessy Joanne

Joanne Hennessy

Legal Director

Right to work checks must be kept up to date and employers should verify with the Home Office the status of those with expiring leave who are still employed.

The original guidance applicable to Chinese nationals provided that long-term visit visas would be automatically extended so that those who had reached their 180 day maximum stay in the UK, albeit their visa may not have expired, would get an extension. The updated guidance does not reference this and so we recommend affected individuals reach out to the Home Office Coronavirus Immigration Team for guidance on their position.

New guidance issued by the Home Office on 31 March confirmed that NHS frontline workers (and their families) with visas expiring between 31 March and 1 October 2020 have an automatic extension for one year to enable them to focus on fighting coronavirus. Although the legal basis for this is unclear, it has been confirmed that this extension does not have to be requested - it will be automatically applied. Initially, this was said to cover doctors, nurses and paramedics employed by the NHS. On 1 May, the list of frontline workers was expanded to include biochemists, physiotherapists, therapists, social workers and many more. The update confirms that those eligible can be employed by the NHS or the independent sector.

This extension will apply to any relevant individual affected, so not just those on sponsored Tier 2 or 5 visas for example. The update also confirmed that frontline workers can work at any NHS  hospital during the coronavirus outbreak if their sponsor can maintain their sponsorship duties, and that sponsors are not required to update the sponsorship management service (SMS) with the individual's new work location. Frontline workers can carry out supplementary work in any role at any skill level during the coronavirus outbreak, and there is no restriction on the number of hours they are able to work.

Finally, pre-registered overseas nurses who are currently required to sit their 'first skills' test within three months, and to pass the test within eight months, will now have this deadline extended to the end of the year. If they do not pass on the first attempt, they will have until 31 May 2021 to pass the exam.

The Home Office has confirmed that original visa terms and conditions will continue to apply where an individual is able to benefit from an extension, automatic or otherwise, due to the pandemic although the precise legal basis for this is not yet clear. Crucially, for those extensions due to the pandemic which must be requested, it must be noted that if the applicant's reasons are not accepted they will become an overstayer and so will not be in the UK on the basis of their original visa terms (e.g. the right to work). Our advice therefore remains that anyone whose visa is about to expire and who is eligible to extend or switch to another category should do so instead of relying on the coronavirus extension. It is not yet known if these will be further extended as this situation develops. It is therefore important that visa holders ensure that they submit any extension applications they are eligible for in time. Although applications can be submitted online, all application centres in the UK are now closed and so biometric appointments cannot be made – we await guidance from the Home Office as to whether they will continue to process applications in the absence of fresh biometrics but have heard anecdotal evidence of this occurring. Those not eligible to do so should be prepared to leave the UK at short notice if expiries kick in.

Switching

Migrants in the UK and looking to move to a long-term UK immigration category (e.g. moving from a Tier 2 Intra-Company Transfer to Tier 2 General) often cannot switch within the UK, they must leave and apply from their home country. The Home Office is exceptionally allowing those who cannot leave the UK, due to travel restrictions or self-isolation, to switch in-country until 31 July if their visa expires between 24 January and 31 July 2020. This includes those whose leave has already been extended until 31 July.

All other eligibility rules for the category will apply, including, we assume, those as to cooling off provisions. As noted above, some applicants will not be able to attend biometric appointments as all application centres in the UK are temporarily closed due to the current situation. The Home Office has confirmed they will not be regarded as overstayers or subject to enforcement action as a result of this.

Sponsoring an employee waiting for a Tier 2 or 5 visa application to be decided

The Home Office has now released guidance allowing sponsors to have employees start work before their visa application has been decided if the following conditions are met:

  • sponsors have assigned them a CoS;
  • the employee submitted their visa application before their current visa expired; and
  • the role they are employed in is the same as the one on their CoS.

It appears that this would apply to sponsors in a range of useful scenarios at present including that of migrants waiting for the decision on Tier 2 Change of Employment applications.

Employers should be mindful that sponsors' reporting responsibilities start from the date of the individual's employment, not from the date that their application is granted. Employers should refer to the Right to Work Check section below to ensure they are complying with current regulations.

If an employee commences work on the basis of an assigned CoS and their visa application is subsequently refused, sponsors must terminate their employment and should keep full written records of their prompt action taken following a refusal for compliance and future audit purposes.

Sponsorship considerations

Tier 4 students

On 20 April, the Home Office published guidance on temporary provisions for Tier 4 sponsors and those on student visas affected by Covid-19.

The guidance contains many welcome concessions which will be withdrawn "once the situation returns to normal". Points to note include:

  • concession introduced on 14 April allowing new students who are applying to switch into Tier 4 in the UK to commence study ahead of their application being decided reaffirmed. The guidance provides more detail on the requirements which need to be satisfied in order to use this concession;
  • the Home Office will not consider it a breach if Tier 4 sponsors offer distance learning to existing students in the UK or those who have chosen to return home overseas and wish to continue their studies. Sponsors will not have to withdraw sponsorship under these circumstances. The same would apply to new Tier 4 students who have been issued a visa but are unable to travel to the UK. Missed 'contact points' will not need to be reported, although online contact points are expected to be in use as far as possible;
  • the Home Office will not take enforcement action against sponsors who continue to sponsor students absent due to coronavirus. Such absences do not need to be reported – that could be due to illness, self-isolation or inability to travel due to travel restrictions. Further, sponsors do not need to withdraw sponsorship if a student is unable to attend their studies for more than 60 days. A clear record and paper trail should be kept in all circumstances;
  • Tier 4 visas can be extended in line with the Home Office's current general policy. Students who need to repeat a year, retake a module, or resit an exam are exempt from demonstrating academic progression as would usually be required for those applying in the UK;
  • the Home Office may apply discretion if an individual applies for an extension that would take them over the normal maximum period permitted on a Tier 4 (General) visa. As such a concession is discretionary, care should be taken by applicants in providing detailed evidence to justify why an extension beyond the maximum period of leave should be granted;
  • higher education providers with a track record of compliance will be able to self-assess students as having a B1 level of English;
  • Tier 4 students normally required to register with the police or to update their police registration will not be required to do so while social distancing remains in place but will have to when it ends; and
  • the restriction on students working up to 20 hours a week has been lifted for doctors, nurses, paramedics and those whose sponsor has suspended all study. Volunteering is also permitted for NHS Volunteer Responders.

Tier 2 and 5 workers and reporting

Many sponsored workers are now working from home. Normally their sponsor would have to report such a change in place of work to the Home Office within 10 working days. The Home Office has confirmed that where such a change is due to the coronavirus pandemic no such report will be required. However, other changes will need reported in the usual way.

As with students, the Home Office's latest guidance confirms that it will not take enforcement action against sponsors who continue to sponsor employees absent due to coronavirus. Such absences do not need to be reported – that could be due to illness, self-isolation or inability to travel due to travel restrictions.

Further, sponsors do not need to withdraw sponsorship if an employee is absent from work without pay for more than four weeks. A clear record and paper trail should be kept in all circumstances.

Having robust absence reporting processes and records is key at the moment. If audited further down the line, sponsors should be able to evidence authorised absences related to coronavirus.

Tier 2 migrants and furlough

Employers will be relieved to hear that on 3 April, the Home Office finally published some guidance on the application of furlough to sponsored migrants in the UK. The guidance confirmed:

  • if you cannot pay the salaries of sponsored employees because you have temporarily reduced or ceased trading you can temporarily reduce the pay of your sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower. Although not expressly stated, by implication we assume this means it will not be a breach in circumstances where a sponsored migrant's salary falls below the applicable minimum threshold;
  • any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same; and
  • these reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.

Frustratingly this guidance is silent on whether employers should report the changes to salary. Until guidance is published to the contrary we would recommend that employers err on the side of caution and that any changes to salary are reported against the relevant migrant's Certificate of Sponsorship, as usual, using the Sponsor Management System. It will be important to confirm the reason for the reduction in the 'free text' section of the report, and to keep a copy of the wording submitted as part of the report for compliance purposes.

Employers should also retain a copy of the company-wide policy that is being implemented to avoid redundancies so that employers are able to justify any salary decreases in a Home Office audit.

Looking ahead, we recommend that the date at which salary reductions are due to come to an end should be diarised so that employers remember to report the increase on within 10 working days of salary being increased.

Certificate of Sponsorship (CoS) and confirmation of acceptance for studies (CAS) expiring whilst applications are unable to be submitted

The 3 April Home Office guidance also confirms that if you have issued a CoS or CAS and the sponsored employee or student has not yet applied for a visa they will still be able to do so. Where the start date for the employment or course has changed, the Home Office will not automatically refuse such cases. The example provided in the guidance is that the Home Office may accept a CoS which has become invalid because the employee was unable to travel as a result of coronavirus.

Caution should be taken in respect of this update as the Home Office has caveated this guidance stating that "such situations will be considered on a case by case basis".

Employers wishing to use this concession are advised to keep full details of why an application has not been submitted. This could be a paper trail of the discussions that took place as well as evidence of the relevant visa application centre being closed within the timeframe the application was required to be submitted. More details are set out in the Home Office guidance of 20 April.

Sponsors should note that the Home Office sponsor priority service, which aims to fast track certain administrative applications within five working days for a £200 fee, is temporarily closed and it is unclear when this will reopen. Sponsors should therefore be mindful that any updates submitted (such as change of Authorising Officer) will be subject to the 18 week service standard. It is extremely important for sponsors to ensure they are on top of their sponsor administrative duties at this time.

Affected employees overseas

Many UK visa application centres overseas are currently closed, as are English language testing facilities. Alongside travel restrictions, this will naturally delay the ability to bring people from other countries to the UK. The situation in a particular country should be checked on a case by case basis. A practical issue to bear in mind for this group is that if such affected individuals are sponsored, their certificate of sponsorship must be used to apply for a visa within three months or it expires. This is one of many practical points we await Home Office guidance on.

Similarly, those whose passports are with closed visa application centres may be prevented from travelling until it is returned to them. A practical consideration for employers is that sponsored migrants are generally given a 30-day entry clearance vignette to come to the UK. Such issues and travel restrictions may prevent individuals from being able to travel within that 30-day period. The Home Office has now confirmed that those affected can request a replacement vignette, with revised validity dates, free of charge until the end of 2020. This can be requested by emailing [email protected] Emails should include the individual's name, nationality, date of birth, GWF reference number and "REPLACEMENT 30 DAY VISA" in the subject line. The replacement visa itself can be obtained when visa application centres reopen. This does not apply to visit visas.

British nationals overseas cannot currently apply for British passports from certain jurisdictions due to reduced staffing levels at the British Embassy and Consulates and application centre closures. Those who need a new passport for urgent travel will instead have to apply for an emergency travel document.

Right to work checks

The Home Office has made temporary changes to the employer process for conducting right to work checks in response to the coronavirus pandemic.

As of 30 March 2020, the following temporary changes apply:

  • checks can now be carried out over video calls;
  • job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
  • employers should use the Employer Checking Service online if a prospective or existing employee cannot provide any of the accepted documents.

Checks continue to be necessary, and employers must continue to check the prescribed documents listed in the government's right to work checks guidance. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.

The temporary process

The new temporary process for conducting right to work checks is:

  • ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app;
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents;
  • record the date you made the check and mark it as "adjusted check undertaken on [insert date] due to Covid-19;
  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call. The applicant must give you permission to view their details.

If a job applicant or existing worker cannot show their documents then employers must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send employers a 'Positive Verification Notice'. This provides them with a statutory excuse for six months from the date in the notice.

This guidance was issued on 30 March and is not stated to be retrospective. Given some employers may have taken a commercial view and followed this approach prior to the guidance being issued, where this was due to the current coronavirus pandemic, we suggest such records note that it was an "adjusted check undertaken due to Covid-19" as referenced above to address any potential future challenges as to the rationale for the format of check undertaken. Follow up checks should be completed as referenced below.

Following up once restrictions are lifted

The Home Office has stressed that this is a temporary measure. It will release further guidance in advance of the concessions ending to give employers sufficient time to revert back to the previous right to work check process.

Employers should keep a record of all individuals checked using this new process, as they will be asked to carry out retrospective checks on existing employees who:

  • started working while the temporary measures applied; or
  • required a follow-up right to work check while the temporary measures applied.

Employers should mark the retrospective check: "The individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19".

The retrospective check must be carried out within eight weeks of the Covid-19 temporary measures ending, and both checks should be kept for the employer's records. The employer must end the employment if it finds the employee does not have permission to be in the UK when the retrospective check is completed.