Out-Law / Your Daily Need-To-Know

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 have still not been addressed and the situation is fast evolving. The current guidance covers the period to 31 May but must be monitored closely for updates as the situation develops.

UK Visas and Immigration (UKVI) has published guidance on immigration provisions for UK visa applicants and temporary UK residents. The Home Office 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.

Visa holders in the UK

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.

Those whose visas expire between 24 January and 30 May and cannot leave the UK are eligible for a visa extension to 31 May 2020. However, unlike the original stance taken for many Chinese nationals, this does not appear to be automatically applied.

Those affected, of all nationalities, must contact the Home Office Coronavirus Immigration Team to request this, confirming:

• full name;
• date of birth;
• nationality;
• existing visa details; and
• reason for the extension being required (e.g. suspension of all flights to their home country).

If those eligible for an extension need evidence of this they can obtain this from the Coronavirus Immigration Team.

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 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.

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. All other eligibility rules for the category will apply. It is worth noting that some applicants will not be able to attend biometric appointments 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.

Original visa terms and conditions will continue to apply where an individual is able to benefit from an extension. It is not yet clear 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. Those not eligible to do so should be prepared to leave the UK at short notice if expiries kick in.

From an employer's perspective, 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.

Sponsorship considerations

Tier 4 students

Tier 4 students cannot ordinarily undertake distance learning. However, the Home Office will not consider it a breach of sponsor duties to offer distance learning to existing students in the UK or those who have chosen to return home overseas and wish to continue their studies. Their sponsor will not have to withdraw sponsorship. The same will apply to new Tier 4 students who have been issued a visa but are unable to travel to the UK. These relaxations apply until 31 May 2020.

In its previous guidance, the Home Office confirmed that sponsors would not have to report absences from studies due to the coronavirus situation provided they are authorised by the sponsor. Further, sponsors would not have to withdraw sponsorship if a student cannot attend their studies for over 60 days given the current situation. Although not re-stated in its updated guidance we consider this to remain a sensible approach. A clear record and paper trail should be kept in all circumstances.

Tier 2 and 5 workers

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, sponsored migrant workers may not be able to attend work if they are serving a period of quarantine, or caught by coronavirus-related travel restrictions. These absences normally need to be reported to the Home Office. In its previous guidance, the Home Office confirmed that these absences need not be reported in these circumstances provided that they are authorised by the sponsor. Whilst this is not re-stated in the updated guidance we consider this to remain a pragmatic approach. A clear record and paper trail should be kept, particularly as absences may be relevant if the individual later decides to apply for indefinite leave to remain in the UK.

Normally, a sponsor must withdraw its sponsorship of an employee who is absent from work without pay for four weeks or more, subject to some exceptions. Sponsors need to consider whether exceptional circumstances apply here so that they do not need to do so. The Home Office indicated in its previous guidance that it would not take compliance action against individuals or sponsors on this basis. Again, whilst not re-stated in the updated guidance we believe this remains a pragmatic position to adopt. However, the sponsor should keep a clear record and paper trail of the reason for the absence in case of future audit.

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.

A number of practical sponsorship issues and questions around the completion of compliant right to work checks remain unanswered and we await updated Home Office guidance on these.

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. On the face of it they will be required to apply for a further entry clearance vignette. Again, we await guidance on this.

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.