20/05/2020

Back to Work: Immigration Considerations

As employees and workers begin to return to their workplaces there are specific legal issues that businesses need to know. Alex Christen looks at the issues licensed sponsors should be aware of to ensure they remain compliant with their sponsor duties as well as key immigration considerations for all employers.

Ending furlough for licensed sponsors

Many sponsors will have furloughed employees (and for more information on furloughing sponsored employees, see our article here), but what are their responsibilities when furlough ends?

As a minimum, you should immediately return the pay of sponsored employees to their pre-furlough level (unless you topped up pay to 100% during furlough).  You should also update your sponsor management system to confirm that your sponsored employee has returned to work and that their pay has returned to its previous level. This should be done within 10 working days of furlough leave ending.

In all other respects, your sponsored employees should not be treated any differently to your other employees. They should be notified (ideally in writing) that their furlough leave is ending and that they are to return to ‘work’.  This can include working from home or, where this is not possible, to the workplace.  Home working arrangements do not need to be logged in the sponsor management system but in both scenarios, you should undertake appropriate risk assessments (as you would with all employees) to ensure a safe working environment where possible.

Visa expiry dates

You should be aware of when an employee’s visa is due to expire and have diarised to discuss visa extensions with the employee in good time before the expiry date. If the visa was due to expire between 24 January 2020 and 31 May 2020, the employee’s visa should automatically have been extended or the employee should have contacted the Home Office to extend their visa until at least 31 May 2020 (or longer, if the Home Office extends this deadline).  Visas for front line health and care workers and their families have been extended for longer.

If your employee is in this situation, you must ask them for evidence of the new expiry date and diarise to contact the employee again to discuss extending their right to work nearer to the new expiry date. If your employee is sponsored, and you want to continue sponsoring them, you will need to have the certificate of sponsorship ready, bearing in mind that once they are generated they must be allocated to the sponsored employee within 3 months.

New recruits

If you have been able to recruit during the pandemic, the chances are you will have made use of the adjusted right to work checking process which allows you to check an applicant’s right to work documents over a video call. For more information on the adjusted right to work checks, see our article here.

The Home Office has not yet confirmed when these temporary checking measures will end. When they do, employers will have 8 weeks to carry out retrospective checks on any employees who started working for them during these measures or who require repeat checks. These retrospective checks must be carried out in the normal, pre-pandemic way.

This will involve asking the employee to bring their documents to the workplace so that a check can be conducted face to face, checking the document to be satisfied that it is genuine and consistent with the document holder, taking a copy of the document and marking the copy with appropriate wording. Both sets of right to work checks must be kept on the employees’ records for the duration of their employment and for 2 years afterwards. For more information see the full guidance here.

If, during the retrospective check, you find that the employee does not have the right to work in the UK, their employment must end immediately. This could happen if the employee’s right to work has ended since the adjusted check was carried out.

If you are a licensed sponsor, you may have made use of the COVID-19 concession allowing you to employ a sponsored employee from the point you issued them with a certificate of sponsorship, without having to wait for their visa to be granted.  If this is the case, you must ensure the sponsored employee updates you on the progress of their application. If the application is granted, you will need to see their biometric residence permit and conduct a retrospective right to work check as set out above. If their application is refused, you must end their employment immediately.

Licensed sponsors should also be aware that their reporting duties for these sponsored employees began from the date the certificate of sponsorship was issued.  While licensed sponsors will not have been able to report any activity on the sponsor management system during this time, they will need to make sure that there is a file note of any reportable activity on the sponsored employee’s file. It would be good practice to update the sponsor management system with any activity retrospectively if and when the visa is granted.

Licensed sponsors should include wording in the contracts of employment and offer letters of these sponsored employees, making continued employment conditional on their visa application being successful and also making it a contractual requirement for sponsored employees to keep their employers updated on their application progress.

Other points to consider

If you are considering making redundancies, you must ensure that sponsored or non-EEA employees are treated in the same way as all other employees. For example, you should not use selection criteria that refers to an employees’ right to work in the UK and employees should not be selected for redundancy on the basis that their right to work in the UK has or is about to end.

If you would like to discuss the above in more detail or you are interested in our sponsor management system and right to work check training sessions, please get in touch.