Coronavirus and UK immigration

There is relatively little information available to date on the consequences of the coronavirus pandemic for visa holders and their employers in the UK. This article highlights the available policy information, the problems posed for visa holders and their employers and what they can do to mitigate them.

The main points are as follows:

• The Government will need to expand and revise its policy to extend visa validity for those who cannot leave the UK before their visa expiry dates, due to the pandemic.
• The Government has provided that sponsors can continue to sponsor skilled workers who are absent from work without pay for 4 weeks or longer. This policy might need to be revisited if the pandemic lasts several months, to avoid sponsored skilled workers becoming destitute and being unable to return home.
• Sponsors should preserve documentation of sponsored skilled workers’ absences from work due to the coronavirus.
• The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
• Sponsored skilled workers should preserve documentation of their absences from the UK resulting from the coronavirus.

Automatic visa extensions

The Home Office’s only relevant guidance on what to do if your visa is due to expire but you cannot leave the UK due to travel restrictions is out of date. Last updated on 27 February 2020, the ‘Coronavirus (COVID-19): immigration guidance’ focusses on expiry of Chinese nationals’ visas only. Coronavirus is now present in about 150 countries around the world and heads of state are increasingly closing borders.

The coronavirus immigration guidance automatically extends the visas of Chinese nationals in the UK, with visas expiring between 24 January 2020 and 30 March 2020, to 31 March 2020. Non-Chinese nationals in the UK who can demonstrate that they are normally resident in China can request extension of visas otherwise expiring between 24 January 2020 and 30 March 2020.

The guidance also exceptionally allows Chinese national Tier 2 Intra Company Transfer visa holders to switch to Tier 2 General from within the UK.

The Home Office should update its immigration policy soon to take the spread of the coronavirus into account. The exemptions set out in the original policy should be expanded to address the effects on non-Chinese nationals and their employers. The automatic visa extension will likely need to be revised to be effective beyond 31 March 2020.

Sponsorship of skilled workers and students

The Home Office has relaxed sponsor duties relating to absences for all nationalities, but the reach of the allowances is not clear.

Current requirements

Normally, Tier 2 and Tier 5 sponsors of skilled workers and Tier 4 sponsors of students must report certain absences to the Home Office. For example, a UK employer sponsoring an Indian national to work as a Software Developer in the UK must report to the Home Office if the Software Developer misses their first day at work. A sponsor is also required to terminate sponsorship if the Software Developer takes 4 weeks or more of unpaid leave in a calendar year

Failure to report an absence jeopardises the employer’s or educational institution’s ability to sponsor overseas nationals to work or study in the UK.

Coronavirus provisions regarding absences and their effects

The coronavirus immigration guidance provisions on absences are:

1. 1. Sponsors do not need to terminate sponsorship if an employee is absent without pay for four weeks or more, or a student is unable to attend for more than 60 days; and
2. 2. Sponsors do not have to report students’ or workers’ absences that they have authorised.

The provision for unpaid leave of more than 4 weeks without pay is significant. Sponsors will appreciate the power to mitigate loss of business due to coronavirus by not paying salaries. However, the Home Office might need to revise this provision if the effects of the coronavirus pandemic on businesses last several months: the overseas nationals might run out of money if they are not being paid. They are not able to access public funds. The situation could arise where sponsored skilled workers are being terminated after several months of not being paid and do not have enough money to return home. They might become overstayers or rely on the government to arrange their return. Either of these results would have adverse effects on the individuals’ future visa applications.

The allowance for employers not to report sponsored skilled workers’ absences they have authorised will help with delays to start dates due to coronavirus. The allowance is not otherwise hugely significant: other than absences on the first day, sponsors generally do not have to report authorised absences.

The guidance also states more generally that the Home Office will “not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason.”

Any sponsor who has ever had to enter a work start date for a sponsored skilled migrant when assigning their work authorisation will appreciate that timing is crucial in sponsorship matters. Sponsors are tightrope walkers balancing a myriad of compliance requirements. Coronavirus will disturb the sponsorship timeline for thousands of UK employers. The Home Office’s general indemnity against compliance action for absences due to coronavirus is therefore useful to employers.

On 13 March 2020, the Government withdrew guidance requiring individuals arriving from certain countries to self-isolate upon arrival in the UK. Sponsors therefore do not need to consider self-isolation of newly arriving or returning sponsored skilled workers, at least for the time being.

Reporting termination and job location changes

The adverse effects on businesses will likely lead to many people’s jobs in the UK being terminated, including those of sponsored skilled workers. Employers are required to report termination of sponsorship to the Home Office. Such notification usually leads the Home Office to ‘curtail’, or shorten, a sponsored skilled worker’s visa. As discussed above, the provisions for those whose visa expires and are unable to travel are not comprehensive. Sponsored skilled workers whose jobs are terminated could face difficulties leaving the UK in time to comply with revised visa expiry dates.

The Home Office is silent on other sponsor duties that might be affected. For example, a sponsor is required to report job location changes. It is unclear whether sponsors should report changes in job location if sponsored skilled migrants will be working from home for several months.

What steps can sponsors take?

The best action that sponsors can take now are:

1. 1. Document their decision-making as much as possible; and
2. 2. Save that documentation to the relevant sponsored skilled workers’ personnel files.

For example, where a sponsored skilled migrant’s visa expires but they are not able to return to their country of normal residence, the sponsor should save documentation of the relevant entry restrictions.

It is also worth writing to the coronavirus helpline at [email protected] and saving that correspondence down to the relevant personnel file. Note that sponsors will need a visa-holder’s consent should they wish to correspondence about their particular case with the Coronavirus helpline.

Eligibility for settlement

The Home Office has not addressed the potential effects of absences due to coronavirus on sponsored skilled workers’ eligibility for settlement in the UK. The extent of the protection afforded by the Home Office’s coronavirus immigration guidance will unfold over several years, as affected sponsored skilled workers become eligible for settlement.

Under current immigration rules, sponsored skilled workers may be eligible for settlement after 5 years’ continuous residence in the UK. ‘Continuous residence’ means that absences from the UK do not total more than 180 days in any 12-month period within the 5-year qualifying period; those absences must be for annual leave or other reasons consistent with their work. Absences in excess of the 180-day limit may be allowed for ‘serious and compelling reasons’. The guidance that Home Office caseworkers rely on includes the following as examples of serious and compelling reasons:

• Serious illness of the applicant or a close relative; or
• A natural disaster, such as a volcanic eruption or a tsunami.

The coronavirus’s classification as a global pandemic means it is likely that absences due to the applicant or a family member being ill with the virus or being unable to return to work in the UK due to travel restrictions will count as serious and compelling reasons.

Documentation is crucial in the context of eligibility for settlement. The caseworker guidance states that “a letter which sets out full details of the compelling reason for the absence and supporting documents, for example medical certificates or evidence of disruption to travel arrangements” is required.

The required documentation might be difficult to gather as many who fall ill will not be hospitalised or otherwise receive treatment. Documentation of disruption to travel arrangements might be slightly easier, for example airlines might provide written notification of flight cancellations. It is unclear how a reluctance to fly during the global pandemic, rather than an imposed travel disruption, would be treated. In any case, visa-holders should save all relevant documentation now. It will be harder to collate later.

Other effects of the coronavirus pandemic on immigration

The pandemic’s effects on the UK immigration system and its users are far-reaching. We are unlikely to understand them fully for many years and they are too numerous to examine here.

Here are some issues to watch:

• The practical effects of the Visa Application Centre (VAC) closures – Most UK visa applicants are required to attend a VAC as part of the application process, to submit a digital photograph and fingerscans and often their passports. VACs in China are closed and they might close elsewhere. Applicants might not be able to finalise their applications. This could affect the timings with which sponsors must comply. The passports of some applicants with pending applications might not be returned to them for a long period of time.
• Visitors breaching the prohibition on working in the UK – Visit visa holders who are unable to return to their countries of residence might find it difficult to comply with the prohibition on working in the UK whilst on a visitor visa. Their employers overseas might expect them to resume their duties remotely whilst in the UK.

If you or your business need advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at [email protected].