29/01/2021

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 and other temporary concessions for visa applicants.

On 24 March 2020, Home Secretary Priti Patel announced a visa extension for anyone unable to return to their home country due to travel restrictions and/or self-isolation, and whose leave expired between 24 January 2020 and 31 May 2020. This was subsequently updated to extend all visas expiring up until 31 July 2020. On 30 July 2020, a new grace period between 1 and 31 August 2020 was announced. Anyone whose visa expired between 24 January and 31 August 2020 (including extensions during this period), could continue to live and work in the UK on the terms of their previous leave. This extension was automatic.

As global travel restrictions were lifted the concessions changed and applicants were expected to take all reasonable steps to leave the UK to make applications where appropriate. The picture now is slightly different and we may see the return of certain concessions in light of recent travel bans. For now, if a visa holder intends to leave the UK but has not been able to do so (i.e., because of a travel ban or they have the coronavirus) and their leave expires between 1 January 2021 and 28 February 2021, they can request ‘exceptional assurance’ i.e., additional time to stay in the UK.  If granted, this does not give the applicant leave to remain in the UK, but it will protect them from any adverse consequences where they would otherwise be regarded as an overstayer. If the conditions allow, the applicant can continue working in the UK.

Applications can be made online but owing to technical difficulties, applicants are advised to email requests (see here for more details) attaching evidence of why they are unable to leave the UK.

If a visa holder has previously requested exceptional assurance but has not received a decision and their flight is imminent, they should email the following address. cihassuranceteam@homeoffice.gov.uk

Visa holders who would ordinarily have to leave the UK to make an application, may make a visa application from within the UK if they:

  • urgently need to make the new application or switch immigration routes and
  • cannot leave the United Kingdom to make an application from overseas.

Visa holders are also able to apply for leave to remain to regularise their stay if they have been issued with ‘exceptional assurance’. Visa holders will need to meet the requirements; pay the application fee and submit the application before the expiry of the ‘exceptional assurance’ period.

Visa holders whose leave expired between 24 January 2020 and 31 August 2020 will not face adverse immigration consequences if they did not make an application to regularise their stay during that time. However, if the Visa Holder has now not applied to regularise their stay or submitted a request for an exceptional assurance, they must leave the UK.

Most UK Visa and Citizenship Application Centres have now re-opened for existing customers. Applicants can check which UKVCAS centres are open and book an appointment using the following link.

UKVCAS Service Points and Service and Support Centres will remain open throughout the UK  Applicants should expect delays in support as  Service and Support Centres are offering a reduced number of appointments. However, if an application is made before the expiry of their current leave the applicant can remain in the UK while an application is processed.

The government has confirmed that UKVI service can reuse fingerprints that applicants for student and child visas have already given. This means applicants do not have to attend a UKVCAS or an SSC service point appointment to provide biometric information.

However, they will still have to provide the UKVI with an image of their face and supporting documents. The applicant will receive an email with instructions on how to provide this evidence. The Government has confirmed that if a Visa Application Centre is still closed, the applicant can apply online and select a Visa Application Centre in any country worldwide, subject to that country’s entry requirements, to submit their application and biometrics. This concession will be available until 31 March 2021.

Previously If an individual’s 30-day visa to travel to the UK for work had expired, or was about to expire, they could request a replacement with extended validity dates at no extra cost. This free extension process was due to last until the end of 2020 and we imagine it will be extended.

The UK Government has confirmed that if an individual had a 90-day vignette that has subsequently expired, they must apply for a replacement by completing an online form. They are also required to resubmit their biometric data and pay £154 to replace the vignette.

It is strongly advised that an application for a new visa or a replacement of an expired vignette is only completed if the individual is confident that they can travel to the UK. The new vignette will only be valid for a period of 90 days, thus if the individual cannot travel during this time, they may need to apply again to update the vignette.

If the individual has applied for a replacement vignette but is still waiting for a decision but no longer wants to travel, they should make a withdrawal request at the same Visa Application Centre that they applied from. This will release their passport back to them.

Concessions for health and social care workers

On 31 March 2020, the Home Secretary announced that front-line health and social care workers (both in the NHS and in independent businesses) including doctors, nurses, and paramedics and their families would 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. This list was expanded considerably on 1 May 2020.

Currently, health care workers whose visas were due to expire between 1 October 2020 and 31 March 2021 may be eligible for a free extension. If this is the case, the dependents of health care workers could also get their visas extended for a year. The immigration health surcharge does not apply to health care workers or their dependents.

However, if their visa is due to expire after 31 March 2021, or if they are changing employees, they are not eligible for a free visa extension.

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 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 number of hours student doctors and nurses can work for the NHS to get more doctors and nurses on the frontline.

Adding to this, the deadline to sit the Occupational Structured Clinical Examination (OSCE) for pre-registered nurses in the UK had been extended to 31 September 2021. If the nurses did not pass on the first attempt, they will have until 31 December 2021 to pass the exam. This means sponsors do not need to stop sponsoring pre-registered nurses who have not sat the OSCE within 3 months or achieved full registration within 8 months.

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

Immigration Health Surcharge (IHS)

On 21 May 2020, the government announced that NHS and care workers will be exempt from paying the IHS (a levy on migrant workers to go towards the cost of using the NHS).  This will be welcomed particularly as the IHS increased to £624 per adult per year from October 2020.

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 the 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 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-1.

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

Full suite of employer guidance, as it is an offence to knowingly employ someone who does not have the right to work in the UK

Government guidance on how to conduct a right to work check in light of the temporary COVID measures, and what to do once the temporary measures have ended

can help employers to ensure that no one is discriminated against because they are unable to show their documents.

The government will let employers know in advance when the COVID measures will end. After the measures come to an end, employers should follow the process set out in the right to work checks: an employer’s guide

If the job applicant/existing worker cannot produce their documents the employer must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send a ‘Positive Verification Notice’. This provides the employer with a statutory excuse for 6 months from the date in the notice.

Guidance for Skilled Worker sponsors

The Home Office has confirmed that is it waiving several 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 allowing sponsored employees to start employment before their visa is issued provided the sponsor have assigned them a CoS and:

  • the employee is applying under the Health and Care visa or their CoS was assigned before 1 January 2021
  • the employee submitted their application before their current visa expired
  • the role they are employed in is the same as the one on their CoS

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. Any changes that may impact the consideration of the sponsored employee’s visa must be updated on the certificate of sponsorship as normal. If the application is rejected or refused, employment must immediately end.

If sponsors are unable to pay sponsored employees’ salaries due to a 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 the employee’s pay returning to normal once the policy ends. This allows sponsors to access the Coronavirus Job Retention Scheme for sponsored employees.

The Home Office guidance for sponsors confirms sponsored employees can have their pay reduced in this way, even if this means their pay falls below the prescribed minimum salary threshold, provided appropriate records are kept.

These changes should also be reported to the Home Office.

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 of 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 of 12 unpaid days leave per year.

Following updated guidance by the Home Office, sponsored employees can take more than 4 weeks of 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.

As has been the case for many months, sponsors are not required to report home working to the Home Office but other changes in working arrangements must be reported as normal.

The Home Office will continue to accept scanned copies of supporting documents for example where a business applies to become a licensed sponsor, but the Home Office can still request original or certified copies and applications will be refused if the evidence or documents is not provided or the business does not contact the Home Office to agree on an extension to the deadline to provide the information.

Home Office audits have also been suspended while the country-wide restrictions are in place.  This may impact how long an application to become a sponsor will take if the Home Office deems it necessary to carry out a pre-licence visit before granting the licence. The Government announced on 29 July 2020 that these arrangements will continue until 30 September 2020 when they will be reviewed. There have been no further announcements on this although we are not aware that audits have resumed.

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.

It is also important to keep up to date on developments, including the new changes to the immigration system which started to take effect from 1 December 2020. If sponsors are considering applying for or making any changes to their sponsor licence and/or sponsored employees’ working arrangements, we recommend that the sponsor first seek legal advice.

Global Talent applicants

Global Talent applicants whose endorsement has expired because they have been unable to travel to the UK may still be eligible for a visa. Moreover, if the applicant’s endorsement from an endorsing body has expired because they have not been able to make an application for a visa, they may still be eligible if:

it was granted on or after 24 January 2020; and

they apply for the visa before 1 January 2021

Applications that do not meet these requirements will be considered on a case-by-case basis.

Temporary concessions have been implemented for Global Talent applicants who are undertaking COVID-19-related research.

Self-quarantine measures for arrivals to the UK

On 27 January 2021, the Government announced further action for outbound and inbound passengers to minimise travel across international borders and reduce the risk of Covid-19 transmission.

Those wishing to travel out of the UK must declare their reason for travel. Anyone without a valid reason will be directed will be directed to return home and may face a fine.  The reason for travel will be checked. There will also be increased police presence at airports and ports to enforce this.

Individuals cannot travel unless you have a legally permitted reason to do so. It is illegal to travel abroad for holidays and other leisure purposes. The legally permitted reasons for travel can be found here.

Those seeking to enter the UK must self-isolate in hotels for 10 days. There are no exceptions and Police will be carrying out physical checks. This applies to those arriving from countries where there are imposed travel bans and those who cannot be refused entry. More details will be provided in due course and more information on foreign travel can be found here.

These new measures are in addition to the restrictions already in place which are:

  • refusing entry: the border agency will continue to refuse entry to non-UK residents from red list countries which are already subject to a UK travel ban
  • entering the UK: passengers arriving in the UK need to provide evidence of a negative pre-departure Covid test – there is also the requirement for people arriving from abroad to self-isolate on arrival. The traveller will be provided with government-arranged accommodation at their own cost if they have not arranged accommodation.
  • Public Health Passenger Locater forms must be completed by all travellers upon arrival into the UK. Failure to provide the requested details can lead to entry being barred if the entrant is not British or a UK resident. The traveller may also face a £100 fine.

Those applying for a UK visa are advised to consider border control guidelines and current travel bans. The application may be delayed and, if successful, may not be received until the suspension on travel is lifted.