The coronavirus global health emergency, along with the government’s response to it, has impacted every area of life in the UK. Many businesses have already grappled with concerns about their cash flow and employees – with central support going some way to limiting the financial shock of the shutdown. Despite the best efforts of the authorities, there is understandable confusion surrounding the status of business in the UK, and the immigration system is no different.
Businesses who employ candidates from overseas, particularly those who sponsor their workers, are likely to have a number of questions. To help make sense of these unprecedented times, we’ve set out some key information on immigration law during the coronavirus pandemic.
Read on to learn more about the status of sponsored workers, what impact coronavirus could have on your visa application and some of the main things that employers should keep in mind.
Can you still apply for a UK visa?
First and foremost, all UK visa application centres have been closed in response to the coronavirus pandemic. Whilst this will not prevent you from submitting an online visa application, your case will not be progressed until the centres have responded, as you will need to attend in-person to provide your passport and enrol your biometrics (fingerprints and photographs).
You can still use this time to prepare your visa application so that you are ready to submit it when the application centres return to their usual operation.
Can you apply to the Home Office for changes to your visa status?
It is still possible to submit an online application to the UK Home Office for changes to your visa status – for example applying for indefinite leave to remain or for a Tier 2 (General) change of employment. As with applying for a visa, however, your application will not be progressed until Immigration Centres can be opened again.
All UK Visa and Citizenship Application Service (UKVCAS) centres are now closed, and it is unclear when they will reopen. You are usually required to attend a physical appointment within 45 days of making an online application to have your photograph and fingerprints registered. The Home Office has not yet provided guidance on whether this time limit will be waived, and we will be monitoring the situation closely for any developments.
Can I apply for a Tier 2 Sponsor License?
As with other areas of UK immigration policy, you can still make an application for a Tier 2 Sponsor License during the Coronavirus pandemic – although it is unclear how long it will take for your application to progress.
The rules have also been relaxed to support employers who are likely to find it difficult or even impossible to get the necessary application documents certified during the lockdown. As a temporary measure, you will no longer need to submit original, certified copies of documents for Sponsor License applications and copies of relevant documents (such as bank statements, employer’s liability insurance certificates etc.) will suffice.
Can Tier 2 Visa holders still travel to the UK?
In theory, travel to the UK is still possible. However, it is likely to be difficult, and the official advice is to remain at home. If you or a new employee of yours has been issued with a 30-day Tier 2 (General) visa and cannot travel to the UK to commence work on their official start date, you should notify the Home Office that their start date has been delayed through the Sponsorship Management System.
Usually, start dates for Tier 2 workers cannot be postponed beyond 28 days from either the start date on the Certificate of Sponsorship or from when the visa was issued. The government has not yet provided any guidance on whether this rule will be waived or relaxed.
Do you need to inform the Home Office about sponsored workers working from home?
In a word, no. The Home Office has issued guidance for Tier 2, 4 and 5 sponsors (available HERE) which states that employers do not need to report that sponsored workers are working remotely from home if they are doing so as a direct result of the coronavirus pandemic. This would include if they are self-isolating or if you have temporarily closed your work premises.
Can you offer unpaid leave to sponsored workers?
In normal circumstances, Tier 2 sponsored workers cannot take more than 4 weeks’ worth of unpaid leave per calendar year.
Recent Home Office guidance (available HERE) confirms that employers are not required to withdraw sponsorship from an employee who is absent from work without pay for longer than 4 weeks if the absence relates to the coronavirus. There is also no requirement for employers to report absences without pay due to the coronavirus to the Home Office.
Comfort can also be taken from the fact that the Home Office has made clear that they will “not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus”.
Can the Coronavirus Job Retention Scheme be used for sponsored workers?
Yes, the Home Office has confirmed that the Coronavirus Job Retention Scheme can be used for migrants, although they must meet the same criteria as other employees to be eligible. This means that they must have been enrolled on their employer’s PAYE payroll on 28 February 2020. Sponsored workers who are not on PAYE will not qualify for the scheme.
The government has also published guidance (available HERE) which states that employers can temporarily reduce the pay of any sponsored employees to 80% of their salary or £2,500 per month – whichever is the lower figure. This appears to be a direct response to furloughing migrant workers.
Can you still recruit someone who needs a Tier 2 visa?
Employers who want to recruit a migrant worker requiring a Tier 2 visa can still begin the process in the usual way by carrying out a resident labour market test (where applicable) and applying for a Certificate of Sponsorship (CoS). Employees can also apply for a visa, although their case will not be progressed until UK Visa and Citizenship Application Service (UKVCAS) centres have reopened for biometric appointments.
There has been no clear indication of how long this process will take. However, we continue to monitor the situation closely.
Do we have to carry out right to work checks on new employees who are starting work from home?
Guidance issued by the Home Office has confirmed that employers can now conduct right to work checks over a video call.
To carry out right to work checks via video call, employers will need to request a scanned copy or photograph of their employee’s right to work documents and will need to arrange for the original documents to be shown on a video call. When coronavirus measures have come to an end, employers will have 8 weeks to carry out ordinary checks on the original right to work documents.
This process can be avoided if your employee has a biometric residence permit or card (which are issued to family members of EEA nationals) or those with settled or pre-settled status under the EU Settlement Scheme. For more information about online right to work checks, you can read the government’s advice for employers here.
Does it matter that some Tier 2 sponsored workers have returned to their home countries to work remotely?
In simple terms, the visa status of Tier 2 (General) sponsored workers should not be affected if they have returned to their home countries to work remotely – provided that you continue to be their employer and pay them (unless they are taking unpaid leave related to coronavirus).
It is important to note, however, that if a sponsored worker’s visa expires whilst they are out of the country, they will be subject to the Tier 2 cooling-off period – meaning that they will be unable to apply for another Tier 2 visa for a period of 12 months. The Home Office is yet to confirm any position on suspending this rule.
Sponsored workers who spend a significant period of time outside of the country may also encounter challenges in the future if they wish to make an application for indefinite leave to remain.
How does coronavirus impact Tier 1 Entrepreneur visas?
In ordinary circumstances, Tier 1 (Entrepreneur) visa holders are required to employ at least 2 people for 12 consecutive months each. These rules have been relaxed due to disruption caused by the coronavirus, and it is now acceptable for Tier 1 entrepreneurs to have multiple employees over 12 months – although any time spent on furlough will not count.
Where to get help
We at WH Solicitors understand the impact that this health crisis has, and continues to have, on businesses up and down the UK. Whether you are an individual concerned about the status of your own visa application, or a business that is struggling to make sense of sponsorship rules – we can help.
Get in touch with our friendly and experienced team today to find out how we can support you with your immigration needs through this difficult time. For confidential assistance, contact our experts on: (+44) 01483 608 786