Measures taken to fightthe spread of COVID-19 have affected almost every aspect of life both in the UKand internationally. The UK immigration system is not immune from thesemeasures, in particular given the wide travel restrictions and lockdown.
The Home Office has a dedicated section of its website for immigration issues related to COVID-19. This article is a brief summary, as at 29 April 2020, of a few of the key changes and concessions to immigration law and practice as a result of the coronavirus. The Home Office’s approach to immigration issues arising from the pandemic is, however, changing and being updated on an almost daily basis and we recommend that anyone seeking guidance please do contact us or check the Home Office website for the up to date position.
Tier 2 and Tier 5 Sponsors
The Home Office’s current position is that sponsors should, where possible, try to comply with the sponsor duties set out in the Sponsor Guidance. However, a sponsor that cannot comply due to the pandemic, but is taking a reasonable and pragmatic approach, should not be penalised.
The Home Office has issued COVID-19 guidance for organisations that sponsor overseas workers under Tiers 2 and 5 of the Points Based System. It promises not to take any enforcement action against anyone who continues to sponsor employees despite absences due to COVID-19 (the guidance also covers Tier 4 students).
- Reporting Obligations
Ordinarily, sponsors are required to report a change in the workplace of an employee and any absences over 4 weeks. The Home Office has relaxed these reporting requirements. In light of the fact that most employees are now working from home, there is no need to report this as a change in work location. There is also no requirement to report any employee absences that have been the result of the consequences of the COVID-19 outbreak. Sponsors will also not be required to withdraw sponsorship for employees where any absence extends beyond 4 weeks and is unpaid. Sponsors should, however, continue to report other changes, for example if a sponsored employee is working out of another office abroad. Sponsors should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties. Sponsors will need to report any termination of a sponsored worker’s employment as normal. This will, of course, also have immigration implications for individual employees.
- Reduction in pay – Furlough arrangements:
Sponsors are now also permitted to cut the pay of sponsored employees to 80% of salary, or £2,500 a month (whichever is lower). Any changes must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. This concession applies regardless of the SOC code minimum salary. The reduction is permitted as a temporary measure, and, once the furlough arrangement has ended, the salary must return to the previous rate in accordance with the Certificate of Sponsorship. Sponsors must report all salary changes to the Home Office.
- Certificates of Sponsorship (CoS) – Validity and Delay in Start dates
A Restricted CoS must be assigned within three months. Once assigned, it must be used within three months. If either of the three month deadlines is missed, the CoS will become invalid and a new CoS will be required. However, if the CoS became invalid because the employee was unable to travel due to the COVID-19 pandemic, it may still be accepted by the Home Office. Applications will be considered on a case-by-case basis.
- Employees with pending in-country Tier 2 or 5 visa applications
Sponsors mayallow employees to start work before their visa application has been decided providedthat (i) a CoS has been assigned, (ii) their application was submitted in-timebefore their current visa expired and (iii) the role they are employed in isthe same as the one on their CoS.
Reportingresponsibilities for an employee start from the date the CoS was assigned, notfrom the date that their application is granted. Any changes that will impactthe eventual consideration of the migrant’s visa application should be updatedon the CoS, as normal. If the employee’s application is eventually rejected asinvalid or refused, their employment must be terminated.
Visaapplications and extensions
- Migrants in the UK with a visa expiring between 24 January 2020 and 31 May 2020 will have their visa extended to 31 May 2020 if they cannot leave the UK because of travel restrictions or self-isolation related to COVID-19. The extension is not automatic and needs to be requested from the Home Office via an online form.
- Migrants applying to stay in the UK long-term can apply from the UK to switch to a long-term UK visa until 31 May 2020. This applies where migrants would usually need to apply for a visa from their home country. For example, a visitor could apply from the UK to switch to a Tier 2 or family visa. The concession is limited to migrants whose visa is due to expire by 31 May 2020.
- UK Visa and Citizenship Application Centres run by SOPRA STERIA in the UK are temporarily closed. If your visa is due to expire, you should submit an extension of leave application online in the normal way before the date of expiry of your visa in order to protect your position and to prevent becoming an overstayer. Priority and super-priority processing is not currently available. Your application will not be processed until the biometric centres have re-opened and you have been able to attend a biometric appointment. Your supporting documents can, however, be uploaded in the meantime on the SOPRA STERIA website.
- For migrants wishing to apply for a visa from outside the UK, Visa Application Centres are also closed. Migrants can submit their online applications as normal although the processing will be delayed until the Visa Application Centres re-open and they can attend a biometric appointment.
- If you have already secured entry clearance to the UK but cannot use it before it expires, you can request a replacement visa with revised validity dates free of charge until the end of this year. Please note that this does not include visit visas. As the visa application centres abroad are closed, the replacement visa will not be issued until the centres re-open.
- In addition, applicants with an endorsement in the Global Talent, Start-up and Innovator categories may still be eligible for a visa even if the endorsement has expired. They are encouraged to apply as planned and the Home Office will consider all applications on a case by case basis.
Parliament has made very clear that no one should have a negative outcome through the immigration system due to a circumstance that was beyond their control. Reality does not, however, always reflect political pronouncements or aspirations. So far, Home Office staff have shown themselves willing to be flexible in some areas. However, it is very important to check the position on a case by case basis and to keep abreast of the guidance as it is published.
About the Author
Alice Boyle is a solicitor with extensive experience in all areas of immigration law. She can assist both corporate and individual clients with any immigration, nationality or asylum matter and possesses a sound understanding of Tier 1 Investors, Tier 1 Entrepreneurs and Tier 2 matters. Alice has substantial experience of challenging UK Home Office decisions, regularly representing clients in appeals at both the First-Tier and Upper Tribunal and also by way of Judicial Review applications in both the Upper Tribunal and UK High Court.
Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.
This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.
This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.
For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on [email protected].