Covid-19 and UK immigration law - Q&A for employers

With the UK on lockdown, many businesses have been forced to close or have required employees to work from home. Employees who hold immigration permission to work in the UK are often subject to special conditions, most notably there is sometimes a requirement to report any change to an employee’s terms and conditions of employment to the UK immigration authorities.

Companies should therefore ensure that any measures taken in relation to their workforce do not lead to a breach of their immigration duties or any migrant workers breaching their visa conditions.

Since the start of the crisis, the Home Office has been publishing temporary concessions for visa holders and their employers. These include relaxed reporting requirements for sponsored workers, a modified right to work check process and automatic visa extensions where applications cannot be filed on time or migrants are prevented from leaving the UK.

To guide visa holders and their employers through these changes we have compiled this Q&A which we will keep up-to-date as further policy guidance is released.

There are many current and potential situations which are not covered by the Home Office’s guidance. If an employer finds themselves in a situation which is not detailed in the guidance, it is important that, whatever resulting action is taken, the reasons for this are clearly documented on the relevant migrant workers’ files. If this is done, if the Home Office subsequently undertakes a compliance visit and questions the action that was taken, the employer can point to a contemporaneous record. In our experience, even if it disagrees with the decision, in this situation the Home Office is less likely to take action against the employer.

1.
Can visa holders be furloughed?

Yes. All visa holders can be furloughed on the same terms as local employees but there are special considerations for those sponsored by employers under the Tier 2 immigration category.

2.
What additional steps do Tier 2 sponsors need to take?

Tier 2 visa holders are sponsored by organisations to work in the UK under strict conditions. Normally, the sponsor is required to report any changes to the employee’s terms and condition of employment, such as changes to their job title, job description, place of work and salary and allowances. Tier 2 visa holders are also subject to minimum salary requirements depending on the specific visa category and the job they are doing.

The Home Office has published guidance on what steps employers should take in relation to sponsored workers in a number of scenarios which are likely to arise due to measures taken to halt the spread of coronavirus. We have summarised these below:

Change made to the Tier 2 visa holder’s terms of employment Home Office reporting requirement
Employee has been furloughed on full pay. No report required.
Due to furlough, employee’s salary reduced to 80% of their normal salary, or £2,500 a month, whichever is lower, as part of company-wide policy to avoid redundancies and in which all workers are treated the same. The change in salary must be reported on the Sponsor Management System with an explanation that it is due to furlough.
Employee is on an unpaid leave of absence due to the Covid-19 outbreak. An unpaid absence lasting longer than four weeks should be reported, but the Home Office has confirmed that they will not take any compliance action against sponsors for unpaid absences lasting longer than this.
Employee is not furloughed but pay has been reduced.

A report is required as usual.

If the reduced pay remains above the minimum salary threshold, no further action need be taken.

The Home Office has yet to confirm whether it will permit reductions in salary below the minimum salary threshold.

Employee is temporarily working from home or overseas full time.

No report required.
3.
A new joiner is on a Tier 2 visa and their change of employment visa application has been submitted but not yet decided – can they start work with their new sponsor before their new visa is issued?

Yes. The Tier 2 employee can start work if:

  • they have been assigned a Certificate of Sponsorship by the prospective employer;
  • their application to change employers was submitted before their current visa expired; and
  • the job they start is the same as the one listed on the Certificate of Sponsorship.

If the submitted application is rejected or refused, the employee must immediately stop working for the sponsor.

4.
Can a UK-based employee work overseas and still be employed by a UK employer?

Yes. There is no general requirement in UK immigration or employment law that the employee of a UK company must only work for their employer in the UK. Furthermore, there is no requirement for the UK employee of a UK company to have UK immigration permission to work for that company while they are working overseas. However, if an individual does start working for a UK employer outside the UK, care should be taken to ensure compliance with the employment, immigration and tax laws of the relevant jurisdiction.

Where an employee does move overseas during the crisis, to the employer should document the agreement with the employee.

5.
How will the Home Office treat visa holders who are absent from the UK during this period?

It is critical that visa holders who leave the UK appreciate that their absence may have an adverse impact on future immigration applications.

For most visa holders, if they wish to qualify for indefinite leave to remain (ILR also known as “permanent residence” or “settlement”) in the future, their absences from the UK must not exceed 180 days in any rolling 12 months during the relevant qualifying period for ILR, which is normally five years. In addition, if they wish to subsequently apply for British citizenship, the absence requirements are even stricter and essentially mean that visa holders must not be outside the UK for more than an average of 90 days per year over the relevant qualifying period which, again, is normally five years.

The Home Office has a discretion to waive absences in “serious and compelling circumstances” and the Home Office announcements so far suggest that it considers that the current pandemic falls into this definition.

However, there is no clear Home Office guidance on how they will treat absences relating to the pandemic.

Our view is that, if visa holders leave the UK and are prevented from returning due to circumstances beyond their control (i.e. the border is closed and flights are cancelled) or are advised not to travel for medical reasons, this would be considered a serious and compelling circumstance and it is likely the absences will be waived. Documentary evidence of the reasons for the absences should be preserved for future applications.

However, if they leave the UK and are able to, but choose not to return, the Home Office is less likely to consider this to be a serious and compelling circumstance and they risk breaching their allowances of absences.

Visa holders who wish to apply for ILR in the future and whose absences are approaching the 180 limit may wish to consider staying in the UK since there is no guarantee that the Home Office will exercise its discretion in their favour if they exceed this limit. The same applies for the 90 day limit for those who are considering applying for British citizenship, although it should be noted that the Home Office does have a wider discretion to waive absences for this application.

There is a further consideration for those who are sponsored under Tier 2. When applying for ILR, not only must they meet the 180 day threshold, their absences from the UK must be consistent with their UK role. Consequently, if they will be working overseas for a prolonged period due to restrictions put in place to combat the spread of Covid-19, this should be clearly documented so that this can be provided in support of a future ILR application.

6.
What should employees in the UK do if their visas are about to expire?

Visa applications submitted in the UK involve a two-stage process. First an individual must submit an online application form and pay the relevant application fee. They must then attend a visa application centre in the UK to enrol their biometrics and to have their passport verified. Visa application centres in the UK are temporarily closed, but online applications are still being accepted.

Where a visa is about to expire, the visa holder should submit an online application and pay the application fee before their current visa expiry date.

Submitting an online application before a visa expiry date secures the right to remain and work in the UK even after the visa has expired. Normally, once the online application form has been submitted, biometrics must be enrolled within 45 days. However, the Home Office has relaxed this requirement until the centres reopen.

An important point to note is that, once the visa holder has submitted their online application, they may continue to travel outside the UK up until the date their visa expires. After that date, they will be required to remain in the UK until they are able to attend an appointment at a visa application centre and a decision is made on their visa application.

Once the application centres reopen, an appointment should be booked to complete the process and secure an extension.

7.
The employee’s visa type cannot be extended within the UK and they cannot leave due to travel restrictions. Does the Home Office’s guidance cover this situation?

Some visa types cannot be extended from within the UK and the migrant must return to their home country to file a new application or risk overstaying their visa. For example, Tier 5 Youth Mobility visa holders must leave at the end of their two years and Tier 2 General visas are limited to six years in total. This also applies to those on visit visas.

The Home Office has offered a concession where visa holders who are:

  • currently in the UK;
  • whose visa is due to expire between 24 January 200 and 31 July 2020; and
  • who would normally have to leave the UK to apply for their next visa from overseas can now apply in the UK.

The process outlined at Q6 should be followed.

8.
The employee’s visa is about to expire and they were not planning to extend it, but they are prevented from leaving due to illness or travel restrictions. What does the Home Office say about this situation?

The Home Office has introduced a helpful concession. Where a visa is due to expire between 24 January and 31 July 2020 and travel restrictions prevent the visa holder from leaving the UK, they can automatically extend their visa to 31 July 2020 via an online process.

They will need to send identity documents and an explanation why they cannot return home via the form here. For example, they can explain that there are no flights to their home country or they are self-isolating in the UK on health grounds.

As the situation develops, this concession may extended to those visa holders with expiry dates later than 31 July 2020, but this is yet to be confirmed.

If the visa holder successfully extends their stay to 31 July 2020, they should ensure that they make arrangements to leave before this date once they are able to do so.

9.
The employee’s visa is about to expire but they are stuck outside of the UK and are prevented from returning

There is currently no Home Office guidance on what visa holders should do in this situation.

It is normally not possible to apply to extend a UK visa overseas. In addition, unlike for applications submitted in the UK, submitting an online application overseas does not preserve an individual’s immigration permission until the application is decided. Consequently, any individuals who find themselves in this situation are in danger of having a break in their immigration status which could affect any future application for indefinite leave to remain.

This has the potential to particularly affect Tier 2 visa holders since, if their visas expire while they are overseas, under the current Immigration Rules, they may be caught by the cooling-off period which would normally prevent them from returning to the UK on a Tier 2 visa for 12 months. The cooling-off period does not apply if they are applying for a Tier 2 (General) visa and their salary is above £159,600, if they are applying for a Tier 2 (Intra Company Transfer) visa and their salary is above £120,000 or if their last Certificate of Sponsorship was granted for three months or less.

We are hopeful that the Home Office will issue guidance on this scenario shortly. In the meantime, any visa holders that find themselves in this situation should retain evidence of the unavoidable break in their immigration status and UK residence, for example, screenshots of cancelled flights or lack of flights.

10.
My employee’s 30 day travel visa has expired or is about to expire and they cannot travel to the UK to collect their Biometric Residence Permit

If the employee’s 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, they can request a replacement visa with revised validity dates free of charge until the end of this year.

To make a request, contact the Coronavirus Immigration Help Centre on CIH@homeoffice.gov.uk. They’ll need to include their name, nationality, date of birth and GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line.

They’ll be contacted when the application centres reopen to arrange for a replacement visa to be endorsed in their passport.

Employees will not be penalised for being unable collect their BRPs while coronavirus measures are in place.

This process will be in place until the end of 2020.

11.
I have a new joiner on my team, how do I perform a right to work check?

I have a new joiner on my team, how do I perform a right to work check?

Usually, you must handle the original document and inspect it in the presence of the new joiner to complete a valid right to work check. As this is not practical during the current crisis, the Home Office has relaxed the policy.

The new process 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”; and
  • 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.

After the Covid-19 measures end

The Home Office will let employers know in advance when these measures will end. After that date, employers should follow the normal right to work check procedure by handling original documents and meeting with the employee (either in person or via video link).

Employers will be asked to carry out retrospective checks on existing employees who:

  • started working for you during these measures; and
  • required a follow-up right to work check during these measures You should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.”