Coronavirus: immigration implications for UK employers

In 2020, the UK Home Office 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.

If an individual intended to leave the UK but has not been able to do so and they have a visa or leave that expires by 30 June 2021 they 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

This should be accompanied by evidence of why they cannot leave the UK.

Whilst a decision on exceptional assurance is pending, the Home Office has confirmed that applicants will not be treated as overstayers or suffer any detriment in any future immigration applications for this consideration period. They will continue on their current - or most recently expired - visa conditions: 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.

Switching

Those in the UK who wish to remain should apply for the necessary leave to remain to regularise their stay. Not all individuals will be able to apply from within the UK to switch immigration categories. Current guidance states that, if eligible, individuals may apply to stay from within the UK if they hold permission in a route which would usually permit an application from within the UK, or their current visa expires before 1 July 2021.

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’.

Employer sponsorship considerations

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.

We recommend that any longer-term changes to working arrangements, such as migrants working from home or on a hybrid basis going forward, should be reported using the SMS. Please contact us for guidance on fulfilling these obligations if needed. 

Absences

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.

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 and priority processing options may not be available in all locations. 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. Whether or not a successful application will result in a visa being immediately granted will also depend on whether the country is on the government's 'red', 'amber' or 'green' list, and therefore subject to travel restrictions. 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 the nearest VAC is still closed due to coronavirus restrictions, applicants can visit a VAC in any country worldwide to submit their application and biometrics, subject to that country's entry requirements. This concession can be used for any type of application until 30 June 2021.

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.

New coronavirus testing and quarantine rules

Those travelling to the UK should note the current Covid-19 testing and quarantine requirements and travel restrictions, which are subject to regular review and change. The applicable requirements vary between England, Scotland, Wales and Northern Ireland and according to whether an individual has travelled from a 'red', 'amber' or 'green' listed country. There are also a variety of job-related exemptions from these requirements.

Right to work checks

During the pandemic, the Home Office made temporary changes to the employer process for conducting right to work checks. These temporary changes end on 31 August 2021.

From 1 September, employers must once again check individuals' original documents, rather than scans or photographs of the originals; or use the Home Office's online right to work check tool (which cannot, for example, be used by British nationals). Checks must be performed in the physical presence of the individual or via a live video link, while the original documents are in the possession of the employer.

Employers will not be required to carry out full right to work checks retrospectively where a Covid-19 adjusted check was carried out while the concessions were in force, between 30 March 2020 and 31 August 2021. However, where the worker's right to work was time-limited, additional checks required after 1 September must be carried out under the usual rules.