13/05/2020

COVID-19 and changes to immigration rules – Updated

The coronavirus pandemic has brought about a slew of changes to the legal system that affects both British citizens and foreign nationals working and living within the United Kingdom.

Visa extensions for those unable to return to their home country

On 24 March 2020, Home Secretary Priti Patel announced a visa extension for anyone unable to return to their home due to travel restrictions and/or self-isolation, and whose leave expired between 24 January 2020 and 31 May 2020. Anyone in this situation should contact the UKVI’s newly set up COVID-19 immigration team via this email address CIH@homeoffice.gov.uk to extend their visa. The current extension will last until 31 May 2020 but it is hoped that this date will be extended and that those whose visas are due to expire in the months following 31 May, will also benefit from this concession.

To help those who want to apply for visas to stay in the United Kingdom long-term, the Home Office is also temporarily expanding the in-country switching provisions. This means that people can switch routes while remaining in the UK. For example, a tier 5 (youth mobility) could switch to a tier 2 (general worker). UKVI will continue to process applications as quickly as possible but be prepared for some applications to take longer than others due to COVID-19 related operational pressures. There is the added difficulty that application and service centres are currently closed in the UK but as long as the application was made before the expiry of the current leave, the applicant can remain in the UK and should book an appointment as soon as possible once the centres re-open.

Concessions for health and social care workers

On 31 March 2020 the Home Secretary announced that various front line health and social care workers (both in the NHS and in independent businesses) including doctors, nurses and paramedics and their families will have their visas automatically extended, for one year if it is due to expire before 1 October 2020, free of charge in an effort to help combat the COVID-19 epidemic. Anyone who has an outstanding application will be offered a refund. NHS staff can also work at any NHS hospital during the pandemic without notifying the Home Office, providing their sponsor can continue with their sponsor duties such as monitoring and reporting work activity. Further, NHS staff can work as many hours as they wish and in any role, regardless of skill level, during the outbreak.

The idea of the extension is to allow front line staff to focus fully on combating COVID-19 instead of worrying about their visas expiring. The government has also lifted restrictions on the amount of hours student doctors and nurses can work for the NHS in order to get more doctors and nurses on the frontline.

Adding to this, pre-registered overseas nurses who are currently required to sit there first skills test within 3 months and to pass the test within 8 months will now have their deadline extended to the end of the year. This gives nurses more time to pass their exams while spending the immediate term working on the frontline.

Finally the government has confirmed that family members of front line workers who die from COVID-19 will be offered indefinite leave to remain.

Tier 1 Entrepreneurs

Ordinarily, those with a Tier 1 Entrepreneur visa must employ at least 2 people for 12 consecutive months each as a condition of their visa. This rule has been relaxed where business has been disrupted due to COVID-19 and the 12 month period can now be made up of multiple jobs across different months. While time staff spend on furlough will not count towards the 12 month period, if the Tier 1 visa holder has not been able to meet these requirements by the time their visa expires, they can temporarily extend their stay in order to do so. This concession will apply to Tier 1 Entrepreneur applications made after 31 May 2020, providing that the employment relied on is disrupted due to COVID-19.

Right to work checks

The government has also temporarily adjusted right to work checks to make them easier for employers to carry out.  As of 30 March 2020, checks can be carried out over video call. Applicants and existing workers can send scanned documents, or a photo of the documents for checks using a mobile App or via email. Once they are back in the workplace, a full right to work check must be carried out in the worker’s presence and recorded as normal.

Helpful guidance:

  • Employer checking service, if a prospective or existing employee cannot provide any of the existing documents
  • List of prescribed documents, as it is an offence to knowingly employ someone who does not have the right to work in the UK
  • Government guidance on how conduct a right to work check in light of the temporary COVID measures, and what to do once the temporary measures have ended

Guidance for Tier 2 (General) sponsors

The Home Office has confirmed that is it waiving a number of requirements on sponsors in light of COVID-19. The full guidance can be found here.

Sponsors will not be required to report homeworking to the Home Office, although other changes in working arrangements will still require notification as normal.

The Home Office has confirmed that it will not take enforcement action against sponsors who continue to employ sponsored employees who are absent from work without pay for more than 4 weeks due to the coronavirus.

Given the delays in visa applications, the Home Office is also allowing sponsored employees to start employment before their visa is issued provided that they have a certificate of sponsorship from their intended sponsor, they applied for a visa before their current visa expired and the role they are employed in is the same as the one on their certificate of sponsorship. The sponsor’s reporting obligations however begin from the date they assigned the certificate of sponsorship to the sponsored worker, and while they will not be able to report via the sponsor management system in the usual way, sponsors must keep a record of any reportable activity. If the application is rejected or refused, employment must immediately end.

If sponsors are unable to pay sponsored employees’ salaries due to shortage of trading, sponsors can reduce pay by up to 80% or £2,500 per month, whichever is lower. This reduction must be part of a company-wide policy to avoid redundancies and all workers must be treated the same. Any reduction must also be temporary, with employee’s pay returning to normal once the policy ends.

Although there is not yet any specific mention of furlough within the Home Office guidance for sponsors, the concession on salary reduction implies that furloughing sponsored employees will be allowed.

These changes should be reported to the Home Office.

However, there is still no clear guidance on whether by furloughing sponsored employees and/or reducing their salaries, their temporary salaries can fall below the minimum salary threshold although our view is that reducing salaries below the minimum levels will be permitted if the sponsored employee is furloughed..

An alternative to furloughing/reducing salaries is requesting that sponsored employees take annual and/or unpaid leave. In normal circumstances, sponsored employees can take up to 4 weeks unpaid leave in each calendar year, according to their normal working pattern. For example, if a sponsored employee works 3 days per week, they can take up to a total 12 unpaid days leave per year.

Following updated guidance by the Home Office, sponsored employees are allowed to take more than 4 weeks unpaid leave if due to coronavirus. Specific examples include illness, isolation or travel restrictions. It may also include absences due to childcare responsibilities. These absences do not need to be reported but clear records should be kept.

Please note that sponsors should take care not to treat their sponsored employees more or less favourably because of their visa status in response to these temporary alterations to the guidance. If you are considering making any changes to your sponsored employees’ working arrangements, we recommend that you first seek legal advice.