Coronavirus: immigration considerations as UK returns to work

Out-Law Analysis | 13 May 2020 | 3:23 pm | 2 min. read

UK employers of migrant workers must ensure that reporting and right to work checks are up to date as people who cannot work from home begin to return to their places of work.

Changes to working hours, worker duties and working practices may all trigger sponsor reporting requirements.

Reporting duties

Many businesses have altered employees' working hours or salary during the Covid-19 pandemic, whether by 'furloughing' through the Coronavirus Job Retention Scheme or altering contractual terms and conditions. These changes all trigger reporting requirements, and as best practice we have been recommending that employers update the sponsor management system (SMS) with this information.

As employees return to the workplace, employers should ensure they remain on top of their reporting obligations and do so within the reporting timeframes stipulated in the Tier 2 and 5 reporting guidance.

Changes to employee's role or duties

Covid-19 has forced many businesses to reduce their workforces, either temporarily or permanently. This impacts staff who have not been made redundant or had their working hours reduced, who may have been moved into new roles or taken on new responsibilities.

Employers should seek legal advice if small or large changes have been made to the roles of sponsored migrants within the business, so that an assessment can be made to ensure that they are still able to work compliantly.

Sponsored migrants who have experienced role changes during or as a result of the Covid-19 pandemic, meaning there are undertaking new responsibilities, or who have been redeployed elsewhere within the business, meaning they are carrying out a different role, trigger reporting requirements for sponsors. Employers must ensure that the relevant updates are made to SMS to reflect the sponsored migrant's new duties or role. In some circumstances, changes may even push the migrant's role into a new Standard Occupational Classification (SOC) code requiring a fresh Tier 2 application.

Employers should seek legal advice if small or large changes have been made to the roles of sponsored migrants within the business, so that an assessment can be made to ensure that they are still able to work compliantly.

Right to work checks

The Home Office has introduced temporary measures, effective 30 March 2020, to enable employers to carry out right to work checks remotely during the pandemic. Employers must carry out repeat checks within eight weeks of the date these checks are announced as ending. They must also carry out retrospective checks on existing employees who started working for them while the temporary measures were in place, or who required a follow-up right to work check during this period.

Records of both the check carried out during the Covid-19 temporary measures and the retrospective checks should be retained by the employer.

Redundancy reporting

The economic impact of the Covid-19 pandemic may mean that businesses are considering redundancies. Again, this would trigger reporting requirements which must be recorded using the SMS.

Employers should ensure that they are making notifications within a timely manner, and may wish to seek immigration advice to assist affected employees in considering their immigration options before or after doing so.

Changes to working practices

As the UK transitions out of pandemic lockdown measures and employees start to return to offices, many employers will be considering a staggered approach to returning to office-based working. This means that key personnel listed on the sponsor licence, as well as sponsored migrants themselves, may still be working from home, at least in the short term.

Home Office guidance is relatively silent on working from home, but the practice has historically been frowned upon from a compliance perspective. We are seeking clarification from the Home Office as to whether long-term home working would be acceptable for sponsored migrants if suitable processes and procedures were implemented to ensure that businesses could effectively monitor these workers while adopting a more agile approach to working.

Although key personnel are permitted to work from home, we recommend that sufficient consideration is given to how migrant workers can be effectively monitored by businesses if working from home becomes more common.