The COVID-19 pandemic has affected individuals and businesses of all sizes and has dramatically changed our way of life. The UK immigration system has been no exception with individuals and businesses who have been significantly impacted. We explore some of the questions our Business Immigration team have been dealing with on behalf of our clients. If you have any questions which have not been answered below, or you require further clarification, please contact our Head of Business Immigration, Sundeep Rathod.
COVID-19 FAQs for businesses and Sponsor Licence holders:
Can I carry out a Right to Work Check on an employee if I am social distancing?
The Home Office understand that with the implementation of social distancing measures, individuals self-isolating/shielding and border closures/travel restrictions, it has become impractical to meet with people face to face and carry out checks. In light of this, temporary changes to Legal Right to Work Check requirements were announced by the Home Office on 30th March 2020. Please see our previous alert where we discussed these changes and the steps businesses can take to ensure they have a statutory excuse against a potential Civil Penalty.
Can I furlough a Tier 2 migrant under the Coronavirus Job Retention Scheme? And does this count as Public Funds?
The Home Office has confirmed that sponsors may reduce salary on a temporary basis to 80% of an employees’ salary or £2,500 per month, whichever is lower. These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended. It also stated that “any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same”.
Sponsors must report this change of status within ten working days from the date of effect. We would further recommend that sponsors make a follow-up report once the employee returns to work and the salary is put back to the original level. Businesses who are unsure on the steps involved in reporting a change in salary should contact our Business Immigration team.
The Home Office and HMRC have both confirmed the Coronavirus Job Retention Scheme is not defined as a public fund and therefore migrants who are placed on furlough will not be in breach of their conditions of stay.
Do I have to report to the Home Office if a sponsored migrant is working from home?
In line with the Government advice that people should work from home where they can, the Home Office has taken a soft approach to this question and confirmed that sponsors do not need report a change of location via the Sponsor Management System (SMS) for sponsored migrants who are working from home. However, when employees return to work, if they will be working from a different office to that stated on their CoS, we would recommend a report on the change of office location be made via the SMS.
Can I reduce the working hours of a Tier 2 sponsored worker?
The Home Office’s Sponsor Guidance confirms it is permissible for a Sponsor to reduce a Tier 2 workers hours/salary, however, you would need to ensure they are still paid above the appropriate rate requirements for the sponsored roles, i.e. £30,000 or the SOC code minimum for Tier 2 Generals (whichever is higher) or £41,500 or the SOC code minimum, for Tier 2 ICTs. The recent Home Office guidance seems to suggest that sponsors can take advantage of the government’s Coronavirus Job Retention Scheme and pay salaries lower than the minimum salary thresholds as long as the pay reduction meets the criteria detailed above. Any changes should be notified to the Home Office as per usual via the SMS. Again, we would recommend Sponsors retain evidence that this temporary drop in salary (if it goes below the minimum salary threshold) be retained on the personnel file of the relevant sponsor worker.
What if a Tier 2 sponsored worker is absent without pay?
The Home Office has confirmed that it will not take enforcement action against sponsors who continue to sponsor workers despite absences due to coronavirus – see relevant section of the guidance here. Sponsors do not need to report employee absence related to coronavirus (illness/self-isolating or inability to travel due to travel restrictions). We recommend that Sponsors retain evidence of such reasons for absence on the sponsored migrant’s personnel file (for example, email communication with your employee that the absence was due to COVID-19).
Can I delay a Tier 2 sponsored migrant’s start date if they are still not in the UK?
Yes, this is confirmed in the Sponsor Guidance at paragraph 23.9. Once a visa application has been approved, if a sponsored migrant’s start date changes, sponsors are permitted to change the start date to within 28 days from the later of:
- the date on which their entry clearance or leave to remain is granted; or
- the start date on their CoS (taking into account any changes to start date properly reported before leave is granted)
Any change to the employee’s start date should be reported as normal via the SMS.
We have an employee travelling to the UK – what should they expect upon arrival to the UK?
As part of the Government’s COVID-19 recovery strategy, it was confirmed that all international arrivals will receive increased information about the UK’s social distancing measures at the border. Individuals will be required to supply contact and accommodation information and will be strongly advised to download and use the NHS contact and tracing app. You may choose to advise your employees to download the app ahead of their travel to the UK.
Secondly, all international arrivals which are not on a list of exemptions will be required to self-isolate in their accommodation for 14 days. Where international travellers are unable to demonstrate where they would self-isolate, they will be required to do so in accommodation arranged by the Government. If corporate accommodation will be provided to your employee, you should ensure they are aware of the full address and can provide those details on arrival.
All journeys within the Common Travel Area (i.e. all journeys between the UK, Crown Dependencies and Ireland) shall be exempt from these measures. The document states that the measures for international arrivals will come in to force as soon as possible. Further details and guidance will be published shortly and the measures and list of exemptions will be kept under regular review.
COVID-19 FAQs for Individuals
I am currently in the UK and unable to leave. I’m worried my visa will expire and I will become an overstayer – What should I do?
The Home Office has confirmed that individuals who are in the UK legal and are unable to leave the UK because of COVID-19, and whose visas are due to expire or has expired between 24 January 2020 – 31 May 2020, will be granted an extension of their visa up to 31 May 2020. The message from the Home Office is that that individuals who have been affected by COVID-19 will not be regarded as an overstayer – see link here.
To request an extension in line with the Home Office’s concession, individuals will be required to complete an online form. The extension will take the form of an update on UKVI’s systems (NB a new Biometric Residence Permit (BRP) will not be issued). If you had to request an extension from the Home Office, we would recommend you retain copies of your correspondence with the Home Office in the event this is ever requested.
Individuals whose visas are expiring after 31 May 2020, at present are unable to benefit from this concession. We are closely monitoring any change to the automatic visa extension date of 31 May 2020 and will update our guidance to reflect the latest changes.
I’m in the UK and I’ve submitted my visa application but I can’t attend a biometrics appointment- what should I do?
Once an online visa application has been submitted, an individual must submit their biometrics within 45 days at one of Sopra Steria’s UKVCAS. At present, all UKVCAS are closed until further notice therefore individuals are unable submit their biometrics as part of their application. The Home Office have confirmed that they have waived the 45 day deadline giving applicants sufficient time to complete their biometrics once UKVCAS reopen.
Individuals who have submitted a valid application online, prior to their leave expiring and paid the application fee, their application will be deemed to have been submitted “in time” and therefore the terms of their current visa will continue until a decision on the new application has been made.
If you would like to keep an eye on any updates from Sopra Steria, you can access their website here.
I’m based outside of the UK and I want to submit my visa application – what should I do?
As with UKVCAS in the UK, Visa Application Centres around the world are closed and therefore individuals are unable at present to submit their visa applications. With world-wide border closures and social distancing measures imposed in the majority of countries, each country will have their own specific date VACs will reopen.
If you have submitted an application and paid the online fee, you will be contacted by the Visa Application Centre or UKVI to arrange a biometric appointment.
The situation is constantly changing across each country and therefore individuals are encouraged to check for the most up-to-date information for their VAC which can be found here.
My visa was issued but I was unable to travel to the UK within my 30 day visa – what are my options?
The Home Office recently issued guidance on this issue which can be found here. In short, individuals whose 30-day temporary visa vignettes have expired or are about to expire, can email the Coronavirus Immigration Help Centre (CIH@homeoffice.gov.uk) for a replacement vignette. Applicants will need to ensure the email subject line contains the wording “REPLACEMENT 30 DAY VISA” and include in the body of the email, full name, nationality, date of birth and the GWF reference number from your application form. Individuals will be able to receive a new replacement vignette, free of charge, from the relevant VAC once they reopen.
This concession is available until the end of 2020 and we understand that all replacement vignettes will be endorsed with a 90 day travel window. The Home Office have also assured that no one will be penalised if they have not been able to collect their Biometric Residence Permit from the Post Office or an Approved Collection Location within the specified period.
I am unable to book an English Language test at an approved centre or sit my Life in the UK test – can I submit my application without this document?
Unfortunately, English language and Life in the UK test centres in the UK are still closed with no indication of when they will reopen. The Home Office recently confirmed that such applications will not be refused but simply put on hold until an applicant has been able to sit a Life in the UK or English language test. At present, we do not know if the Home Office will stipulate whether tests need to be completed within a certain timeframe from when an application is considered but we will continue to monitor this closely.
For individuals who are required to sit an English language test as part of an overseas visa application, please check the IELTS website for a list of approved test centres which remain unaffected.
My Tier 2 CoS has been assigned and I am waiting for my leave to remain application to be decided. My employer says I am unable to start work for them – are they correct?
They are not correct. The Home Office issued guidance on this and confirmed that an employee can start work before their application has been decided as long as:
- They have been assigned a CoS;
- They submitted their application prior to their current visa expiring (proof of an application must be shown to your employer);
- The job you will be performing is the one stated on your CoS.
This is a temporary measure and was introduced so individuals would not be left in limbo in between jobs/starting a new job given UKVCAS are currently closed and applications therefore cannot be processed.
I heard NHS workers can get an automatic extension of their visas, is that correct?
The Home Secretary, Priti Patel, announced that frontline health workers and their dependants may be able to have their UK immigration permission extended by one year, free of charge. However, this is only for those individuals whose visas are due to expire before 1 October 2020 and are working for the NHS or an independent healthcare provider in one of the following professions:
- biological scientist
- dental practitioner
- health professional
- medical practitioner
- medical radiographer
- occupational therapist
- social worker
- speech and language therapist
- therapy professional
Individuals should note that in order to obtain the extension, their employer must contact the Home Office and inform them of your eligibility. The step-by-step process for this relatively straight forward request can be found here. The Home Office have been continually updating their guidance in light of further developments with COVID-19 – all latest updates can be found here.
I would like to switch to a long-term visa in the UK rather that applying from my home country – is this possible?
The latest Home Office guidance confirms that anyone in the UK whose visa expires between 24 January and 31 May 2020, can potentially switch to a long-term immigration category inside the UK. As you’ll see, only those whose visa expired or is due to expire between 24 January and 31 May can benefit from this concession. Each applicant will need to ensure they meet the requirement of the relevant UK immigration visa category being applied for and pay all relevant UKVI fees associated with the application.
An example of the above would be an individual on a Tier 5 (Youth Mobility visa) whose visa is expiring on 30 May 2020 – based on the Home Office’s concession, this individual would be permitted to switch to a Tier 2 General visa inside the UK rather than returning to their home country to file the application.
I’m concerned my Indefinite Leave to Remain (ILR) application will be affected because of absences related to COVID-19 – what should I do?
The absences requirement for ILR applications is that an applicant should not exceed 180 days in any 12 month period. The Home Office has not published any specific guidance in relation to excess absences due to COVID-19 for ILR applications. The Home Office does however have discretion to waive excess absences which have been caused by serious and compelling circumstances – the burden is on the applicant to demonstrate what the serious and compelling circumstances are. We would therefore recommend individuals keep evidence of the serious and compelling reasons which have prohibited them from returning to the UK.
Considering how devastating the COVID-19 pandemic has been, we would hope the Home Office takes a compassionate view on absences caused by COVID-19 when considering whether an applicant has exceeded the relevant threshold. Anyone concerned with their absence record should contact our Business Immigration team for further advice.
There continues to remain many unanswered questions and Simons Muirhead and Burton, together with other organisations, are working to obtain clarification from the Home Office on a wide range of immigration implications due to COVID-19. We expect the Home Office to be announcing further changes in the coming months and will ensure this page is updated accordingly.
The above should be treated as a guide only and if you require specific advice or assistance or have any COVID-19 immigration questions which have not been covered above, please contact our Head of Business Immigration, Sundeep Rathod.