Sponsors and individuals should take note of the following clarification made by the Home Office:
Unpaid leave for sponsored migrants
It is permissible for an employee to be absent for more than 4 weeks without pay due to absences relating to coronavirus e.g. if they are ill, need to self-isolate or cannot travel due to travel restrictions and the sponsor is not required to withdraw their sponsorship. Sponsors also do not need to report absences for employees where this is directly related to coronavirus. This is of course a temporary measure and we would advise Sponsors to retain evidence on HR personnel files as it is likely this will be required to demonstrate illness/requirement to isolate/travel restrictions etc.
Salary reductions and furlough of sponsored workers
The guidance confirms that sponsors can temporarily reduce the pay of migrant workers to 80% of their salary (up to a cap of £2,500) through the furlough scheme. However, any reductions must be part of a company-wide policy to avoid redundancies – so all workers are treated the same.
The reductions can only be temporary and the pay must return to normal “once these arrangements have ended”. The wording in the guidance would also appear to indicate that it is acceptable for the salary to fall below the SOC code minimum during this temporary period only but must return above the minimum once these temporary measures have passed. Whether a grace period will be offered for sponsors to return the pay to normal remains to be seen.
Start dates on Certificate of Sponsorships (CoS)
Where a COS has been assigned but the employee has not yet been able to apply for a visa, the Home Office will not refuse the application because the start date on the COS has been and gone. The Home Office will still accept a COS which is invalid (i.e. past the 3 month expiry date) but will treat all applications on a case by case basis.
Unfortunately, there is still no guidance from the Home Office on whether they will waive the rule that a sponsored worker must commence work within 28 days of the COS start date – we are continuing to chase them for clarification on this point.
Tier 1 Entrepreneur – Clarification on requirement to employ 2 settled workers for 12 months
In another update issued today, the Home Office have sought to clarify the requirement to employ two settled workers for 12 months for Tier 1 Entrepreneurs whose business has been affected due to the pandemic. The current guidance states that there is now no longer a requirement to employ at least 2 people for 12 consecutive months each. The 12 month period required to employ someone for can be made up of multiple employees across different months.
Unfortunately, time when your employees were furloughed will not count towards the 12 month period. Quite generously, the Home Office have confirmed that those who have unable to employ staff for 12 months in total by the time their visa expires, will be allowed to temporarily extend their stay to give time to meet the requirement. At this stage, we have no further information on how long this temporary stay will be but we will continue to update our clients and contacts once this information is provided.