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16th April 2020

COVID-19 and the implications for business immigration

The coronavirus outbreak has caused a great deal of disruption for all employers across the UK. However, for those that sponsor migrant workers under the points-based system, the closure of borders, the closure of businesses and remote working of staff has caused additional complications.
For example, will there be compliance implications for sponsors whose staff are now unable to work? What if a sponsor can no longer continue to pay their staff? What about those migrant workers whose visas have expired but who are unable to return home?

The Home Office has now produced guidance to assist employers and migrant workers in navigating the points-based system and business immigration issues during these unprecedented times. The full guidance can be found here, but we have summarised the key points below.

For employers that sponsor workers under Tier 2 or Tier 5

One key concern has been how licensed sponsors will comply with their sponsor duties during this time. The Home Office has confirmed, however, that it shall not be undertaking compliance action during the coronavirus outbreak and further:

  1. Sponsors are not required to report absences or changes in the place of work where the sponsored worker is absent or working from home as a result of the coronavirus outbreak.
  2. Sponsors do not need to withdraw sponsorship of an employee who is absent without pay for 4 weeks or more if such absence is as a result of coronavirus.
  3. If a licensed sponsor cannot pay the salaries of sponsored employees because of the coronavirus outbreak, it is possible for the sponsor to temporarily reduce pay to 80% of their salary or £2,500 per month, whichever is lower, even where this would mean that their salary would fall under the salary level required for their role. Sponsors can therefore seek to agree to temporarily change a sponsored employees terms of employment in line with this or look to use the furlough scheme. Given that most migrant workers will have “no recourse to public funds” as a term of their visa, there had been concerns about using the furlough scheme for sponsored workers. However, it has been confirmed that as the furlough scheme payments are classed as a grant to the employer it would not come under the “public funds” definition for these purposes.

    It is clear from the guidance, however, that any reduction in pay must be part of a company-wide policy to avoid redundancies, in which all workers are treated the same and of course must be undertaken in line with general employment law principles. Specific advice should therefore be sought before taking such steps. Further, the Home Office has confirmed that any reductions in pay must be temporary, and the sponsored employee’s pay must return to at least the same as it had been prior to the coronavirus outbreak once the specific arrangement has ended.
  4. It is important to note that, subject to the temporary relaxation of reporting duties for sponsors as outlined in point 1 above, the remaining requirements to report to the Home Office regarding changes in circumstances will remain in place. Therefore, where there is a reduction in the pay of a sponsored worker, whether as a result of furlough or otherwise, this must be reported to the Home Office.
  5. Where a licensed sponsor has issued a Certificate of Sponsorship (CoS) and the sponsored employee has not yet applied for a visa, the employee should still be able to apply for a visa using such CoS. If the CoS has expired, or the start date for employment as stated on the CoS is different to that included in an application, the Home Office has confirmed that it will not automatically refuse applications because of such discrepancies if they are due to the coronavirus outbreak. The Home Office has confirmed that it will consider such issues on a case by case basis.
  6. With effect from 30 March 2020 the following temporary changes have been made in respect of Right to Work checks:

    a) Copies of documents, either scans or photographs, may now be provided instead of originals.
    b) Verification of the documents can now be carried out via video call with the worker.
Employers conducting right to work checks during the coronavirus pandemic should undertake the following steps:

  1. The worker should provide a scanned copy or a photo of their original documents via email or using a mobile app.
  2. A video call should then take place to verify the document. The worker should be asked to hold up the original documents to the camera so that this can be checked against the copy documents.
  3. The date that the check was made should be recorded on the copy and the following wording should be used “adjusted check undertaken on [insert date] due to COVID-19”.
The Home Office has confirmed that the amendments to the Right to Work checking process will be temporary and that all checks conducted under this new procedure will need to be reviewed in accordance with the normal procedures within eight weeks of the Home Office announcing an end to the COVID-19 measures. The Home Office guidance in respect of right to Right to Work Checks can be found here.

For those in the UK whose Visa has or is due to expire

With travel restrictions and applications centres closed there have been several queries about what migrant workers, whose visas have or are due to expire, should do. The full Home Office guidance can be found here, and the key points are that:

  1. Any person who is in the UK legally, but whose visa is expiring (or has already expired), and cannot leave the UK because of the travel restrictions put in place as a result of coronavirus, will not be regarded as an overstayer nor should they suffer any detriment in the future.
  2. Those whose visas are due to expire between 24 January and 31 May 2020, who were not planning on staying in the UK, but who cannot now leave due to travel restrictions, should update the Coronavirus Immigration Team of their circumstances following which their visas should be extended to 31 May 2020.
  3. Finally, if an individual’s visa is due to expire between 24 January and 31 May 2020, and they had intended to make an application to stay in the UK, such applications should still be made before the current visa expires in the usual way. Where the application would usually need to be made from the applicant’s home country, the Home Office has confirmed that it has temporarily extended the ability for individuals to make in-country applications to switch routes to enable such applications to be made from the UK. If an in time application is made, the terms of the applicant’s leave will remain the same until the application is decided.
Whilst there will no doubt still be concerns and issues that arise as a result of the coronavirus outbreak for migrant workers currently working in the UK and those businesses that sponsor them, the clarity that has been given from the Home Office in respect of the points detailed above will be welcomed by those it is likely to affect.

Our advice to sponsors who sponsor migrants who are affected by any of the issues above would be to make sure you and your migrant workers keep detailed records of any steps taken during this time and to retain evidence of, for example, any discussions with the Home Office, cancelled flights, or cancelled appointments at application centres should such information be needed in the future. 

If you wish to discuss any of the contents of this article, please contact Gemma Hill in our Employment Team on 01604 463309 or click here to email Gemma, who will be happy to assist.
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