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Update on Coronavirus and UK immigration


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This article was written by Samar Shams, Spencer West LLP Immigration and Global Mobility partner. 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 19 January 2021 by Talitha Degwa.

The main points are as follows:

  • The majority of visa application centres around the world and in the UK have reopened.
  • 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.
  • Overseas applicants whose 90-day visas to travel to the UK have expired need to apply for a replacement visa.
  • The majority of overseas borders have now reopened.
  • Visa holders who are overseas and have been unable to return to the UK due to COVID-19 travel restrictions and have an expired or a visa which is due to expire, can now make a request to the Home Office to be issued with a visa in order to return to the UK.
  • Visa holders in the UK who are unable to leave and have a visa expiring between 1 January 2021 and 28 February 2021, can request additional time to stay in the UK, known as ‘exceptional assurance’. However, evidence will need to be provided to show they are unable to leave the UK.
  • Employers can use the Coronavirus Job Retention Scheme, now extended until 31 March 2021, to furlough sponsored skilled worker employees.
  • Sponsors are not required to report a change in job location for sponsored migrants working from home.
  • The Government has provided that 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.

Status of UK and global visa application centres

The majority of visa application centres, where applicants submit biometric data as required for most application types have reopened.

Student and Child Student applicants who have already submitted biometric data in support of previous applications are being contacted by UK Visas and Immigration via email regarding next steps in the processing of their applications.

The UK visa application centres are now accepting new bookings, though appointment availability is reduced. The Home Office COVID-19 guidance for visa applicants states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’

Travelling to another country to make a UK visa application

Whilst many overseas visa application centres have reopened, there are still some countries that have not yet opened visa centres due to coronavirus restrictions.

The Home Office have confirmed that applicants who wish to make UK visa application(s) and have been unable to do so due to visa centre closures, can now travel to another country (subject to that country’s entry requirements), to submit any type of UK visa application and attend a visa centre in that country to submit biometrics.

This is a temporary concession has now been extended until 31 March 2021.

Mandatory COVID-19 testing for international arrivals

All international arrivals to the UK (including UK nationals) will need to present a negative COVID-19 test prior to departure, irrespective of whether a country is on the travel corridor list. All travel corridors are currently suspended.

The COVID-19 test should be taken up to 72 hours prior to departure and failure to do so, will result in a £500 fine. The COVID-19 test must meet the .

Children aged under 11 do not need to take the test, there are also some other limited exceptions to the COVID-19 testing requirement. Also individuals traveling to the UK to conduct certain jobs will also be exempted from some or all of the COVID-19 related travel restrictions.

All international arrivals must self-isolate for 10 days. They can however, reduce the self-isolation period from 10 to as a little as 5 days by paying for a test through the Test to Release scheme and the test must be taken by an approved private test provider.

The UK has now also banned travel from certain countries. However, British citizens, Irish nationals and third-country nationals with residence rights in the UK will be allowed to enter the UK; they must self-isolate for 10 days and cannot use the Test to Release scheme to reduce self-isolation time.

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 have an expired or a visa which is due to expire, can now make a request to the Home Office to be issued with a visa in order 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 is 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 that 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.

Once the request has been made visa holders will be contacted by the Home Office who will explain whether the visa holder is eligible and if so, the nest steps. The Home Office will send a confirmation email after a request is submitted. Visa holders then have 48 hours to reply to the confirmation email. Once a reply is received the Home Office aim to respond within 10 working days.

Where a visa holder does not meet the eligibility criteria the Home Office will consider those who left the UK after 17 March 2020 as eligible if they had good reason for leaving the UK. This will be assessed on a case-by-case basis.

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 either leave to remain or ILR.

This concession will be available until 31 March 2021.

Switching visas from within the UK

Many sponsored workers and other migrants who were given a ‘grace period’ up until 31 August 2020 to remain in the UK, have still been unable to leave the UK.

A switching concession is available for those who want to regularise their status and stay in the UK. Applicants no longer need to show their application is urgent and can make an application from within the UK, whereas they would usually need to apply for a visa from their home country.

Applicants in the UK who have been issued with exceptional assurance can also apply to regularise their stay in the UK. Applicants must submit their application before the expiry of their exceptional assurance.

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, which is the date the online application is submitted and the fees are paid.

Replacing expired 90-day visa vignettes

Those applying for long-term UK visas from overseas are initially only granted visa ‘vignettes’ valid for 30 days, to enable them to travel to the UK. Once they arrive, they collect their Biometric Residence Permit card, which is the documentation of their long-term rights to reside and work in the UK.

Many applicants who received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. Applicants were able to apply for free, for a replacement vignette which was issued for 90 days. This concession has now ended.

If the applicant has still been unable to travel to the UK and the 90-day temporary vignette has expired, the applicant will need to apply for a replacement by completing the online form. The cost of replacing an expired 90-day vignette is £154 and the applicant will need to make an appointment to resubmit their biometric information.

UK Visas and Immigration advise that an applicant only apply to replace an expired vignette if they are confident that they can travel to the UK.

If an applicant has submitted an application for a temporary vignette and is still awaiting a decision, but no longer intend to travel to the UK, they should submit a withdrawal request at the Visa Application Centre that they applied from in order for their passport to be released back to them.

Visa extensions

Those whose visas will expire between 1 January 2021 and 28 February 2021, and who are unable to leave the UK, can request additional time to remain in the UK, known as ‘exceptional assurance’. The request is made by contacting the Coronavirus Immigration Help Centre at cihassuranceteam@homeoffice.gov.uk. The subject line should be ‘REQUEST FOR AN ASSURANCE’ and applicants should include their name, date of birth, nationality, Home Office, GWF or other reference number, type of visa, expiry date of visa, reason for request and evidence of flight or evidence showing reason you can’t leave.

Although the guidance published on the website only gives border closures and self-isolation as examples of reasons for not being able to return to one’s country of origin, in a Coronavirus factsheet for UK visa holders circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders should keep documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights.

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.

Alternatively, a visa holder can make an application for leave to remain to regularise their status, i.e. to work or study, under the temporary concession discussed above. Please contact us for further information.

Salary reductions and furloughing migrants

Skilled workers/Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme Grant Extension.

Skilled workers/Tier 2 migrants and most other UK visa holders cannot access public funds, under the terms of their visas. However, the Coronavirus scheme funds do not count as public funds.

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.

The government has not published an exemption from the minimum salary thresholds for sponsored skilled migrants, though it seems the intention is to provide for an exemption. Please contact us for help in fulfilling reporting duties in this situation.

The government has not published an exemption to the requirement to report a reduction in salary. Therefore, sponsors must still report salary reductions within 10 working days. Please contact us for advice on reporting salary reductions.

Salary reductions and furloughing under the family route

Where a migrant and/or their family member have been furloughed, the Home Office will take into account the income as though the migrant and/or their family member was earning 100% of their salary.

A migrant and/or their family member which has a temporary loss of income between 1 March 2020 and 1 January 2021 due to COVID-19, this loss of income will be disregarded provided the minimum income requirement was met for at least six months immediately prior to the date the income was lost.

Right to work checks

Under a temporary policy, 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 and will have to recheck documents within 8 weeks of termination of these special COVID-19 right to work checking provisions. The termination date has not been announced.

For step-by-step instructions on checking right to work documents remotely, please see our article on the topic.

Sponsorship of skilled workers

Authorisation to work whilst a skilled worker or T5 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work before 1 January 2021 whilst their skilled worker/Tier 2 or T5 visa application is pending. An employee will be able to start in the sponsored role where:

  • The sponsor has assigned their certificate of sponsorship
  • The employee has submitted their online visa application

The sponsored worker will only be able to work in the role listed in their certificate of sponsorship.

If the certificate of sponsorship has been assigned from 1 January 2021, the employee will need to wait until the visa application has been granted before starting work, unless the current visa allows the employee to work.

Sponsor reporting responsibilities start from the date the certificate of sponsorship is assigned. Please contact us for help in fulfilling reporting duties in this situation as sponsors might not be able to report in the usual way before the visa application is granted.

If the employee’s visa application is eventually refused, the sponsor will have to terminate their employment.

Changes to the Skilled Sponsor and T5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. The service started back up on 5 October 2020. The service allows sponsors to expedite certain requests to be processed within 5 working days, for a fee of £200. The standard processing time for the relevant requests is otherwise an incredible 18 weeks.

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 from a country that is not on the UK’s travel corridors exemption list will be subject to 10 days quarantine on arrival. Workers may be able to end their self-isolation period earlier if they take a COVID test with a private provider, which is negative. For information on the quarantine programme, please see our article on the subject.

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 between 1 December 2020 and 31 January 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.

Global Talent, Start-up and Innovator visas

The Government suggests that those whose endorsement for global talent, start-up or innovator visas has expired should still submit their visa applications. Global Talent endorsements granted on or after 24 January 2020 will be accepted if the related visa application is made before 1 January 2021. Other applications will be considered on a case-by-case basis.

Start-up temporary visa extension

Visa holders in the UK with permission under the start-up route are now able to apply for additional leave of 12 months to remain in the UK. This would allow the visa holders start-up visa to go beyond the normal 2-year period so that they can continue developing the business against the agreed business plan.

The visa holder must meet the requirements of the route as normal, including being endorsed by an endorsing body. Please contact us for advice and assistance with making a temporary extension application under this route.

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. The new immigration rules which came into force on 1 December 2020 state that 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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