Coronavirus: immigration implications for UK employers

In 2020, the UK Home Office has introduced a variety of relaxations to cater for these challenges. However, at the close of the year many of those concessions came to an end. Individuals are no longer able to extend their visa automatically, and are expected to take all reasonable steps to leave the UK where it is possible to do so or to apply to regularise their stay in the UK.

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.

As immigration and visa services are an essential service most UK Visa and Citizenship Application Centres (UKVCAS) have reopened for existing customers. You can check online which UKVCAS centres are open and book an appointment if you have not already done so.

UKVCAS Service Points are essential services and will remain open throughout the UK so customers can continue to book and attend appointments to progress their visa applications.

Priority services have now resumed overseas in most locations and in the UK.

Visa holders in the UK

Visa holders in the UK are expected to take all reasonable steps to leave the UK where it is possible to do so or apply to regularise their stay in the UK. Visa and Immigration services remain open as these are considered an essential public service and will continue to operate safely under local and national restrictions.

If you intend to leave the UK but have not been able to do so and you have a visa or leave that expires between 1 March 2021 and 31 March 2021 you may request additional time to stay, known as ‘exceptional assurance’.  An exceptional assurance request can be submitted by emailing [email protected] with the following details:

• full name
• date of birth
• nationality
• Home Office, GWF or any other reference number
• type of visa
• expiry date of visa
• reason for request
• evidence of flight or evidence showing reason you can’t leave

In your email you should attach evidence to show why you cannot leave the UK. For example, if you can’t leave the UK because you can’t find a flight before your leave/visa expires, you’ll need to submit a copy of a confirmed flight ticket.

If you’ve previously completed the online form to request exceptional assurance and you’re waiting on the outcome and your flight is imminent, please email the above address with the requested details. Whilst you are waiting a decision on your exceptional assurance request, the Home Office have confirmed that during this time, applicants will not be treated as overstayers or suffer any detriment in any future immigration applications for this consideration period.

During the time in which your request for ‘exceptional assurance’ is pending you will continue on the conditions as per your current or most recently expired visa.

If you are granted ‘exceptional assurance’ it will act as a short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your exceptional assurance.

It is important to note that exceptional assurance does not grant applicants leave. It is a means to protect those who are unable to leave the UK due to Covid-19 restrictions and not to facilitate travel, other than to return home.

If you’ve already been given assurance but your circumstances have changed or you’re unable to leave the UK by the assurance date previously given, you must reapply using the process above. You will need to clearly state that you’re making a subsequent application. You’ll be asked to provide new supporting evidence.

Switching

If you decide to stay in the UK, you should apply for the necessary leave to remain to regularise your stay.

A previous concession allowed individuals to switch to another visa category from within the UK rather than having to submit this application from overseas. This concession and all references to it were removed effective 4 March 2021, and we believe this has now been withdrawn. Applicants wishing to apply from within the UK will need to meet the requirements of the visa category they are applying under and be able to switch from within the UK under the current immigration rules.

Applicants are still able to apply for leave to remain to regularise their stay if they have been issued with ‘exceptional assurance’. They will need to meet the requirements of the route they are applying for and pay the UK application fee, and must submit their application before the expiry of their ‘exceptional assurance’.

If you have overstayed your leave

The Home Office have confirmed that if your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, if you have not applied to regularise your stay or submitted a request for an exceptional assurance you must make arrangements to leave the UK.

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.

It is not yet known what an individual's legal status will be until a decision is made on an assurance application and, therefore, the impact that may have on their rights - for example, to work - during this period. Applicants should carefully consider if an assurance application is the best course for them, as opposed to seeking to otherwise extend or switch.

NHS frontline workers

NHS frontline workers, and their families, with visas expiring between 1 October 2020 and 31 March 2021 may be eligible for a free 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. Unlike the previous concession available to frontline workers, which an automatic extension, in order to benefit from this provision front line workers must submit an application.  Applications must be made here: Visa extensions for health workers during coronavirus (Covid-19). The main applicant must work for the NHS or an independent healthcare provider in an eligible profession to apply using this route.

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.

If you're a health worker and you’ve already paid a fee for a visa extension but you’re eligible for a free extension, you can claim that payment back here: Visa extensions for health workers during coronavirus.

The Home Office has also announced that family members of NHS workers who die from Covid-19 can get indefinite leave to remain for free. On 20 May, this was extended to cover “NHS support staff and social care workers” as well. This should be automatic, but those affected can contact [email protected] for further information.

Service centres have re-opened

For those submitting applications from within the UK, most application centres have reopened for existing customers. A list of the centres that are now open can be found online.

Sponsorship considerations

Tier 4 students

In December 2020, the Home Office published Covid-19: guidance for student sponsors, migrants and short-term students.

The guidance contains many welcome concessions which will be withdrawn "once the situation returns to normal". Where a concession applies to a student, a clear record of this must be retained on their file and noted in their Certificate of Acceptance for Studies (CAS) evidence or sponsor notes section.

Commencing studies ahead of visa approval

• Concession retained allowing new students who applied in Tier 4 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.

Distance learning

• Tier 4 sponsors will not be in breach of their compliance duties if they offer distance learning to existing students in the UK or those who have chosen to return home overseas and wish to continue their studies. They will not have to withdraw sponsorship or report a move to distance learning under these circumstances
• Sponsors can start sponsoring new students who will start studying through distance or blended learning in the 2020-2021 academic year, provided you intend to transition to face-to-face learning as soon as it is possible to do so.
• The course start date on the CAS can be the date on which the court starts by distance learning or the date on which they intend to start learning in the UK
• New international students who want to start a course which will be wholly studied overseas via distance learning will not require Tier 4 sponsorship
• If a student stops engaging with their distance learning for more than 30 days, whether overseas or in the UK, their sponsor must withdraw sponsorship.
• Where a student is continuing their studies via distance learning, whether within the UK or abroad, sponsors do not need to report this as a change of student circumstances.
• The distance learning concessions will apply for the 2020-21 academic year.
• The concession will be subject to regular monitoring to ensure it is working as intended, and it will be subject to review at the end of the 2020-21 academic year.

Absences

• 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.

Attendance monitoring

• Missed 'contact points' due to distance learning or absence will not need to be reported, although online contact points are expected to be used as far as possible where the student is studying by distance learning.
• The Home Office will not take action against sponsors who are unable to monitor online contact points due to practical or technical limitations.
• Sponsors are not required to withdraw sponsorship when students are absent from studies, including online studies, due to Covid-19.

Extensions

• To be granted further permission to complete an existing course, or to begin a new course, students must still meet all other requirements of the Student or Child Student routes, including academic progression, unless certain concessions apply contained within the guidance.
• Students must normally apply to study a course that commences no more than 28 days after their current period of permission expires, but the Home Office will exercise discretion on this requirement if the start date of the new course named on the CAS is no later than 31 March 2021.
• This concession applies to students who already hold permission on the Student or Child Student routes, including Tier 4.
• Students who are unable to complete their course of study within their current period of permission due to Covid-19 can apply in country to complete that course. This includes students who need further time to complete an assessment or sit examinations. Sponsors can issue a CAS for the purpose of a student undertaking an examination or assessment remotely. Students who need to repeat a year, retake a module, or resit an exam are exempt from demonstrating academic progression as would normally be the case for those applying in the UK. Further to this exemption, students who otherwise need more time to complete a course as a result of Covid-19 will be exempt from demonstrating academic progression, for example where a sponsor suspends studies for the duration of any social distancing measures.
• Students who need to make a new application, and would normally be unable to demonstrate academic progression because their new course is at the same level as the previous one, or because they had been undertaking an integrated Masters or PhD/MPhil but will be continuing with the lower level qualification, but who cannot travel overseas to make an application due to Covid-19, will be exempted from the academic progression requirement if the sponsor confirms on the CAS that the previous course and the new course in combination support the applicant’s genuine career aspirations. This concession will apply to courses with a start date before 31 March 2021.

English language requirements

• Many English testing centres have now resumed services. Sponsors can visit the International English Language Testing System (IELTS)’s website, the Pearson Test of English website or the LanguageCert website, or contact the relevant test centre for more information.
• Where an English testing centre has reopened, students who would ordinarily be required to obtain a SELT must do so.Where students are required to take a SELT overseas but a test centre is unavailable, in some circumstances sponsors which are higher education providers with a track record of compliance may be able to self-assess students as having a B1 level of English, where progression on to the main course is dependent upon passing the pre-sessional course.Further information on when and how this concession can be used is contained within the guidance.

Short term study leave

• From 1 December 2020, short-term study of up to six months was incorporated into the visit route as a permitted activity.
• There is no provision in the immigration rules to extend permission as a visitor when coming to study - this includes short-term study of up to six months.

Tier 2 and 5 workers and reporting

Home working

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.

Absences

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

In 2020 the Home Office published some guidance on the application of furlough to sponsored migrants in the UK. Guidance updated in 2021 maintains that employers can temporarily reduce the pay of their sponsored employees in line with government job support schemes. Sponsored workers are eligible for these schemes in the same way as resident workers. The guidance confirms:

• 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; and
• Sponsors cannot reduce sponsored workers’ rate of pay for the hours they work below the going rate for their occupation, subject to any discounts they qualified for when they were granted permission.

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 CAS expiring whilst applications are unable to be submitted

The Home Office guidance 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.

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, was temporarily closed last year but has now reopened. It is currently processing up to 60 priority service requests per day.

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

There was a concession introduced in 2020 allowing migrants to start work if they satisfied certain conditions and had a CoS assigned to them. That concession has now ended for all applicants except those applying for a health and care visa and those who have a CoS assigned prior to 1 January 2021.

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.

Affected employees overseas

Most UK visa application centres (VACs) overseas have reopened, but local restrictions may apply in some cases. Most English language testing facilities have also resumed their services. Alongside travel restrictions, any persisting closures 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.

We understand the Home Office will review such applications on a case by case basis and exercise discretion.

Applying for a visa if your visa application centre is closed

If your VAC is still closed due to coronavirus restrictions, you can visit a VAC in any country worldwide to submit your application and biometrics, subject to that country's entry requirements. This concession can be used for any type of application.

Entry clearance

During the pandemic, the Home Office has been issuing entry clearance vignettes for a validity period of 90 days instead of the usual 30 day period.

If a visa applicant has been unable to travel to the UK and their vignette has expired, it is possible to apply for another one. The cost of replacing an expired 90 day vignette is £154, and an appointment will need to be made for resubmission of the applicant's biometric information.

The new vignette will be valid for a period of 90 days.

As far as we aware, there has been no change to the reporting requirement that a migrant's start date cannot be extended beyond 28 days from the date listed on the CoS. Sponsors should therefore be mindful of using realistic start dates at present if delays in travel are going to be likely.

If you are outside the UK and your leave has expired before you are able to return

If you left the UK with valid leave before 17 March 2020 and you intended to return to the UK and make an application for Indefinite or Further Permission to Stay, but you were unable to do so before your leave expired because of travel restrictions related to Covid-19, the Home Office has created an online form which can be completed. The information provided will be sent to a case working team who will contact the applicant to explain whether they may be eligible under the Covid Visa Concession Scheme and, if so, the next steps.

This concession will be available until 31 March 2021.

If you have been outside the UK for over two years and your indefinite leave has lapsed

Your Indefinite Leave to Remain in the UK (ILR) or Indefinite Leave to Enter the UK (ILE) will lapse if you are absent from the UK for over two years.

If your ILR or ILE lapsed on or after 24 January 2020, and you have been unable to return to the UK because of travel restrictions related to Covid-19, you may apply under the Returning Resident visa route to return to the UK and get indefinite leave. You need to complete the online 'returning resident' application form and pay the fee, which will be refunded. You will need to explain how coronavirus restrictions prevented your return to the UK as part of your application.

British passports

British nationals overseas can apply for British passports online. If required to book an appointment, they will need to check if their nearest application centre is open.

Those who need a new passport for urgent travel will have to contact the Foreign and Commonwealth Office to discuss their options, which may include applying 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 2020 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.