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Update on Coronavirus and UK immigration

Posted: 27 Apr 2021

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This article was written by Samar Shams and Talitha Degwa. It highlights the available policy information, the problems posed for visa holders and their employers and what they can do to mitigate them. It was originally published on 16 March 2020 and was last updated on 27 April 2021 by Samar Shams.

The main points are as follows:

Travel, extensions and switching
  • COVID-19 travel restrictions, testing and quarantine requirements apply to entry to the UK.
  • Temporary visa holders in the UK whose leave is expiring should switch now to other visa routes, using the COVID-19 provision allowing switching from within the UK to visa routes that would usually require an application to be made from overseas.
  • Visa holders who are overseas and have been unable to return to the UK due to COVID-19 travel restrictions and whose visa has expired or is due to expire, can request a visa in order to return to the UK.
  • Visa holders in the UK, who are unable to leave and have a visa expiring by 30 June 2021, can request additional time to stay in the UK, known as ‘exceptional assurance’
  • Temporary policies allow applicants to switch visa routes from within the UK where they would normally have to apply from overseas.
Work and sponsorship
  • Temporary right to work check policies are ending on 17 May 2021.
  • Employers can use the Coronavirus Job Retention Scheme, now extended until 30 September 2021, to furlough sponsored skilled worker employees.
  • Sponsors are not required to report a change in job location for sponsored migrants working from home.
  • Sponsors can continue to sponsor skilled workers who are absent from work without pay for 4 weeks or longer.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.
Settlement
  • Absences due to the pandemic do not count towards settlement eligibility limits on days absent from the UK.

COVID-19 travel restrictions, testing and quarantine

All international arrivals to the UK (including UK nationals) must take a COVID test and get a negative result during the 3 days before the service on which they will arrive in England departs and complete a passenger locator form.

Children under 11 do not need to take a test before travelling to the UK.

Individuals who have been in a red list country in the 10 days before arriving in the UK will only be permitted to enter the UK if they are residents. Visitor applications made from red listed countries will not be decided until the country is removed from the red list.

Those who are resident in the UK and have been in a red list country in the 10 days before arriving will have to book and stay in a quarantine hotel for 10 days. The quarantine package, which can be booked here, includes a variant test on day 2 of one’s stay and a COVID-19 test on day 8 of one’s stay. It costs £1,750 for 1 adult, an additional £650 for each additional person aged over 11 and an additional £325 for each child aged 5 to 11.

Those who have not been in a red list country in the 10 days before arrival in the UK will still have to quarantine for 10 days after arrival, but this can be at their home, at a friend’s house or at a hotel of their choice. They will also have to book a test package for a variant test on day 2 of their stay and a COVID-19 test on day 8 of their stay. The test package costs £210. Children under 5 do not have to take the day 2 and day 8 tests. Individuals who have not been in a red list country in the 10 days before arrival in the UK can reduce the quarantine period by paying for a test with an approved private test provider under the Test to Release scheme.

Those undertaking certain roles are exempted from some or all of the COVID-19 related travel restrictions.

COVID Visa Concession Scheme (CVCS) for visa holders stranded abroad

UK visas holders who are overseas and have been unable to return to the UK due to COVID-19 travel restrictions, and whose visa has expired or is due to expire, can request a visa to allow them to return to the UK.

The concession applies to visa holders who left the UK before 17 March 2020 when the Foreign & Commonwealth Office (FCO) travel guidance changed and who had, or are seeking to apply for, leave on an eligible route. An eligible route is one where, if the visa holder was in the UK they would be able to extend their leave, switch into a different immigration route or apply for Indefinite Leave to Remain (ILR).

To be eligible, the visa holder must be overseas and all the following must apply:

  • They left the UK before 17 March 2020
  • Their leave expired and they were unable to return to the UK before its expiry due to COVID-19 travel restrictions
  • They intend to return to the UK once confirmation they are eligible is given by the Home Office, not less than 21 calendar days’ notice of their date of travel, unless there are COVID-19 related reasons for not being able to travel.

If a visa holder has already contacted the Coronavirus Immigration Help Centre regarding an expired visa or upcoming expiry whilst overseas, the Home Office will communicate with those visa holders regarding next steps. Those who have not yet contacted the Coronavirus Immigration Help Centre should now complete the online form providing all the requested information in order to start the process. Visa holders will not have to attend a Visa Application Centre overseas. If a visa holder is successful under this concession they will be granted a single 3-month entry clearance visa in order to travel back to the UK and submit an application for further leave to remain or indefinite leave to remain.

This concession will be available until 31 March 2021.

Exceptional assurance allowing visa holders to stay in the UK

Those whose visas will expire by 30 June 2021, and who are unable to leave the UK, can request additional time to remain in the UK, known as ‘exceptional assurance’.

If a request is granted, exceptional assurance will act as a short-term protection against any adverse action or consequences after the visa has expired. If your visa conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your exceptional assurance. Exceptional assurance is not the same as being granted a visa.

Switching visas from within the UK

A switching concession is available for those who want to regularise their status and stay in the UK. Applicants can make an application from within the UK, where they would usually need to apply for a visa from their home country.

Many sponsored workers and other migrants who were granted exceptional assurance have still been unable to leave the UK. Others are here as visitors, most of whom are ineligible to switch into other visa categories.

Submission of an application for further leave to remain extends the terms of an applicant’s visa, e.g. the right to work, whilst the application is being processed. The terms of one’s visa are extended from the date of submission of the application.

Applicants must submit their applications before the expiry of their exceptional assurance or visa.

Right to work checks

Under a temporary policy in place until 17 May 2021, the Home Office is allowing for right to work document checks to be conducted via video conference. The employee or prospective employee is to provide an electronic copy of their right to work documentation and show the original document during a video conference call with their employer.

Employers should make a note of the adjusted check.

For step-by-step instructions on checking right to work documents remotely until 17 May 2021, please see our article on the topic. For information on checking right to work documents after 17 May 2021, please see our update article and video.

Sponsorship of skilled workers

Salary reductions and furloughing migrants

Skilled workers/Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme.

Sponsors can reduce migrants’ salaries to the lower of 80% of their normal salaries or £2,500 per month, whichever is lower. The salary reductions can be made regardless of whether migrant workers are being furloughed or not. Employers can claim the job retention scheme funds for those migrants being furloughed. The salary reductions have to be part of a company-wide scheme to avoid redundancies. The government guidance also states that all workers must be treated the same under these schemes. Migrant employees’ salaries must return to at least their previous levels once the COVID-19 measures have ended.

Sponsors must still report salary reductions within 10 working days. Please contact us for advice on reporting salary reductions.

Start date delays and quarantine

Home Office guidance states that where expected work start dates have passed, or certificates of sponsorship, which are the work authorisations assigned by sponsoring employers, have expired, it will still consider applications on a case-by-case basis. Normally sponsored workers must submit their visa applications within 3 months of their sponsor assigning their certificate of sponsorship.

Start date delays still need to be reported as usual.

Employers planning start dates should also take into account that overseas workers traveling to the UK will be subject to 10 days quarantine on arrival. Please see our discussion ‘COVID-19 travel restrictions, testing and quarantine’ above.

Absences

Sponsors need not report absences from work that are due to the coronavirus, including absences due to illness, self-isolation or inability to travel. The coronavirus immigration guidance provisions on absences are:

  • Sponsors do not need to terminate sponsorship if an employee is absent without pay for four weeks or more; and
  • Sponsors do not have to report students’ or workers’ absences that they have authorised.

Normally, sponsors of skilled workers and 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 normally required to terminate sponsorship if the Software Developer takes 4 weeks or more of unpaid leave in a calendar year.

Sponsors must still report a salary reduction if they put a sponsored migrant on unpaid leave.

Reporting job location changes

The Home Office has confirmed to sponsors that they are not required to report job location changes relating to homeworking due to the coronavirus.

However, it is best practice to have on file documentation of the homeworking arrangements. If homeworking is not already provided for in employment contracts or otherwise documented on HR files, then it would be best to put on file documentation that the change was exceptionally and temporarily required due to the Covid-19 pandemic.

Reporting termination and insolvency

Where a sponsor terminates the employment of a skilled worker, they must report the termination of sponsorship within 10 working days.

Sponsors should report insolvency within 20 working days of going into administration or receivership.

What steps can sponsors take?

Sponsors should document their decision-making and arrangements as much as possible and save that documentation to the relevant sponsored skilled workers’ personnel files.

They should consider helping employees whose visas will expire by 30 June 2021 to take advantage of the provisions to extend and to switch to other visa routes from within the UK. It is also worth writing to the coronavirus helpline at CIH@homeoffice.gov.uk 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

An eligibility requirement that cuts across most immigration routes is the requirement not to be absent from the UK for more than 180 days in any 12-month period during the qualifying period for settlement, which is usually 5 or 3 years. Absences due to the global pandemic will not count towards the 180-day limit on absences in any 12-month period.

For migrants applying to enter or remain in the UK on the basis of family life, the Home Office COVID-19 guidance for visa applicants states that ‘If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked.’ 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.

Documentation is crucial in the context of eligibility for settlement. 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.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Immigration and Global Mobility team members Samar Shams at samar.shams@spencer-west.com or Talitha Degwa at talitha.degwa@spencer-west.com.


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