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Back in April we reported on the measures that the Home Office had put in place to assist employers and migrant workers in navigating business immigration issues during the coronavirus pandemic, which can be found here.
The Home Office had provided that migrant workers whose visas were due to expire between 24th January 2020 and 31st July 2020 would be able to request an extension to their visas if they were not able to leave the UK because of the coronavirus pandemic.
However, the Home Office has now stated that, as travel restrictions are lifting globally, such individuals will no longer be able to extend their visas on this basis and will be expected to take all reasonable steps to leave the UK or alternatively make the relevant application if they wish to stay.
A ‘grace period’ had been put in place to allow migrant workers time to make the necessary arrangements but this expired on 31st August 2020. Therefore, any migrant worker whose visa expired before 31st August 2020 should now have either:
Failure to do so may cause the migrant worker to become an “overstayer” and employers will need to be mindful of their obligations in terms of preventing illegal working.
Where the migrant worker’s visa is due to end between 1st September and 31st October 2020, and they intend to leave the UK but they have not been able to do so because of the pandemic, they may still request ‘exceptional assurance’. If a migrant worker is granted ‘exceptional assurance’ it will act as a short-term protection against any adverse action or consequences after their leave has expired. If the terms of the migrant worker’s original visa allowed them to work, they may continue to do so during the period of exceptional assurance. It should be noted however that exceptional assurance is not a grant of leave and is simply a short-term protection to allow the individual time to make arrangements to leave the UK.
The updated Home Office Guidance also states that where a migrant worker is awaiting the outcome of an application under Tiers 2 or 5 of the points-based system, such workers are able to start work before the visa application has been decided provided that:
they have been assigned a Certificate of Sponsorship (CoS) from a licensed sponsor;
they submitted their application before their current visa expired and can show the employing sponsor evidence of this; and
the job that they will be starting is the same as that listed on the migrant worker’s CoS.
Where the above conditions apply but the migrant worker’s application is later refused, the Home Office guidance states that the sponsoring employer would simply no longer sponsor the migrant worker and they would need to stop working.
The flexibility on this is welcomed given that we expect there will be a huge back log of visa applications due to the coronavirus pandemic. However, bearing in mind the very onerous penalties that can be applied to employers in respect of claims of illegal working and that in these circumstances it may be difficult to establish the statutory defence, we wonder whether in reality any employers would allow migrant workers to start before their visas are approved. If as an employer you find yourself in a situation where you are considering allowing a migrant worker to start work before their visa application is decided, we would suggest that you take advice as to the potential risks of doing so and any other potential options.
For more information on any of the items raised in this article please contact Gemma Hill on 01604 463309 or click here to email Gemma.