Sponsors ending or changing migrant workers’ contracts ‘have important reporting duties until 2021’

Out-Law News | 26 Nov 2020 | 12:00 pm |

Louise Shaw tells HRNews about the immigrations implications of making migrant workers redundant under the current system, including reporting to the Home Office.
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  • Transcript

    Is your business restructuring, making redundancies or perhaps involved in both? Many are, of course, as a means of surviving the pandemic, and many of them engage sponsored migrants who will be affected by those changes, whether that means redundancy or a change to their terms and conditions. Of course, as we know, the UK will leave the European Union very soon, free movement will end on 31 December, the Resident Labour Market test will cease to apply, a new immigration system will start from 1 January, but, until then, the current rules apply. So what are the immigration implications of taking making redundancies affecting migrant workers before that deadline? We know many businesses have already taken those decisions and many more will do so in the remaining weeks. To understand the implications, and the Home Office time-scales and notifications, I spoke to immigration specialist Louise Shaw who joined me by video-link from her home: 

    Louise Shaw: “If you're looking at making sponsored migrants redundant you need to remember that you will need to report to the Home Office within 10 working days that that migrant has been dismissed and therefore the sponsorship has terminated. That will cause the Home Office to curtail the migrant's visa to 60 days, so there is an impact over and above just losing a job for a sponsored migrant. So you need to make sure you do the report but also it should be something that's factored into the consultation and informing the migrant that this is going to happen so that they can make alternative arrangements for themselves and their family if they do wish to stay in the UK after the termination of their sponsorship. If you're looking at changes to terms and conditions, this might be as part of a redundancy exercise for example, looking at alternative employment, or it might be changing terms and conditions in a way to try and avoid redundancies and but also mitigate the negative impact of the Coronavirus pandemic. So if you're doing that, you do need to consider whether it's such a substantial change to a sponsored migrant's job that you're actually triggering a change of employment application. If you are triggering a change of employment application that involves basically re-sponsoring the migrant and completely redoing their visa application and this will happen where the migrant's job is changing so substantially that they are moving job code because they have to work in the job that they are sponsored for and within the appropriate code. So this is something you really need to think about from the outset of any mass restructuring programme because planning is key. There are particular timescales around sponsorship and visa applications and if you are in the slightly unfortunate position of needing to do a Resident Labour Market Test, that adds an extra 28 days to any change of employment application. If it's a less drastic change to the migrant's role, for example just to change their job title rather than their substantial duties, or a change to their salary within the job code range, or a change to their work location, then they you do still need to report those changes to the Home Office within 10 working days of the change taking effect. Fortunately there has been a relaxation of this rule in the Home Office's Coronavirus guidance. So for example, the vast majority of sponsored migrants are probably working from home at the moment and that has not needed to be reported against every single migrant - the Home Office has recognised that that would be quite onerous, but that Coronavirus guidance is fairly limited and there are only some exceptions. So it's something to bear in mind that, on the whole, changes will need to be reported within 10 working days. Another thing to think about if you're looking at a more wide-scale restructure of the actual business. If the migrant's employer is changing, sponsor licences aren't transferable and so if a migrant's employer is changing, you need to look at whether the employer, the new employer, can be added as a branch to the current sponsor licence, or if the migrant's visa can be transferred via TUPE to a new licence. If not it might be a case of the new employer applying for a new sponsor licence. So, again, these things take time - the lead in time for a sponsor licence application is four to eight weeks once you submitted it to the Home Office, and actually gathering all those documents and getting it submitted can take time as well so it's something that you really need to be planning from the outset of any wide-scale programme for restructure within the business. I know on furlough, if you've had experience of this already, you'll be aware that the Home Office has been exceedingly slow at issuing guidance in the Coronavirus pandemic. So we have had clients that were having to put migrants on furlough without actually being sure whether it was permitted or not. We do now have guidance to say that it is permitted and the resultant salary deduction has also been permitted by the Home Office but we don't know whether the new flexible furlough, putting someone on part time furlough for example, will be permitted, particularly if it takes the migrant below the salary threshold for their role, so that's something to bear in mind and we may well get further guidance from the Home Office in due course."

    Just to flag for you, Louise and the immigration team have written a number of articles on the immigration changes from 2021 – all the key immigration issues are covered off and the analysis and guides are kept up to date. You can find all of those on the Outlaw website.