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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 04 September 2020 by Talitha Degwa.

The main points are as follows:

  • Visa application centres around the world and in the UK are reopening.
  • 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 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Some overseas borders have now started to reopen.
  • Visa holders in the UK whose leave expired between 24 January 2020 and 31 July 2020 were able to make a request to the Home Office for an extension until 31 July 2020. The Home Office have now given a ‘grace period’ to visa holder and allowed them to remain in the UK up until 31 August 2020.
  • Visa holders in the UK who are unable to leave by 31 August 2020, 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 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Reopening of UK and global visa application centres

Visa application centres, where applicants submit biometric data as required for most application types are now reopening. The centres in the UK and overseas have been closed for the past few months.

Overseas visa application centres are reopening under a phased approach. Please contact Samar Shams for information on whether the visa application centre in your location has opened.

Existing appointments at visa application centres in the UK are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

Some 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 have now started to accept new bookings, though appointment availability is reduced. In the meantime, applicants can submit their online applications and upload their supporting documents. The Gov.UK webpage confirming the reopening states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

The Gov.UK webpage confirming the reopening states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

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 and will reviewed by the Home Office by 30 November 2020.

Switching visas from within the UK

Many sponsored workers and other migrants have had their visas extended to 31 July 2020 but have still been unable to leave the UK. The Home Office have now given them a ‘grace period’ up until 31 August 2020 to leave the UK.

Home Office guidance exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The guidance allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 August 2010 are eligible for the general switching allowance.

A further switching concession is available for those whose leave expires after 1 September 2020 but who urgently need to make a new application. The Home Office gives starting a new job or a new course of study and inability to leave the UK as example urgent circumstances. However, it seems from correspondence with the Home Office about this concession that they are interpreting it quite narrowly at the moment, so it is important to seek advice before relying on this concession.

Finally, the concession which allows those in the UK as a visitor or with leave of up to 6 months to switch from within the UK to a family visa route has been extended to 31 August 2020. This includes switching into fiancé, partner or parent visas. Under the current policy, the online application form for the switching application would have to be submitted by 31 August 2020, though this deadline might be extended.

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 30-day visa vignettes

The guidance also instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expired between 24 January 2020 and 31 July 2020 should have completed an online form to request an extension of their visa validity to 31 July 2020. The Home Office has now given visa holders a ‘grace period’ up until 31 August to leave the UK.

Those who already extended their visas to 31 July 2020 via the online process have now automatically be given a ‘grace period’ up until 31 August 2020. Note that if you submitted an online form to extend your visa to 31 July 2020, and did not receive a response confirming the extension, you should resubmit the online form to request an extension.

Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

Salary reductions and furloughing migrants

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

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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. 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.

For tips on managing migrants in the contexts of the extension of the furlough scheme, the return to work or termination, please see this article.

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 Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

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 a 2-week quarantine on arrival. 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, 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 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 August 2020 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. The applications will be considered on a case-by-case basis.

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. For migrants applying to enter or remain in the UK on the basis of family life, the guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 14 August 2020

The main points are as follows:

  • Visa application centres around the world and in the UK are reopening.
  • 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 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Some overseas borders have now started to reopen.
  • Visa holders in the UK whose leave expired between 24 January 2020 and 31 July 2020 were able to make a request to the Home Office for an extension until 31 July 2020. The Home Office have now given a ‘grace period’ to visa holder and allowed them to remain in the UK up until 31 August 2020.
  • Visa holders in the UK who are unable to leave by 31 August 2020, 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 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Reopening of UK and global visa application centres

Visa application centres, where applicants submit biometric data as required for most application types are now reopening. The centres in the UK and overseas have been closed for the past few months.

Overseas visa application centres are reopening under a phased approach. Please contact Samar Shams for information on whether the visa application centre in your location has opened.

Existing appointments at visa application centres in the UK are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

Some 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 have now started to accept new bookings, though appointment availability is reduced. In the meantime, applicants can submit their online applications and upload their supporting documents

The Gov.UK webpage confirming the reopening states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Switching visas from within the UK

Many sponsored workers and other migrants have had their visas extended to 31 July 2020 but have still been unable to leave the UK. The Home Office have now given them a ‘grace period’ up until 31 August 2020 to leave the UK.

Home Office guidance exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The guidance allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 August 2010 are eligible for the general switching allowance.

A further switching concession is available for those whose leave expires after 1 September 2020 but who urgently need to make a new application. The Home Office gives starting a new job or a new course of study and inability to leave the UK as example urgent circumstances. However, it seems from correspondence with the Home Office about this concession that they are interpreting it quite narrowly at the moment, so it is important to seek advice before relying on this concession.

Finally, the concession which allows those in the UK as a visitor or with leave of up to 6 months to switch from within the UK to a family visa route has been extended to 31 August 2020. This includes switching into fiancé, partner or parent visas. Under the current policy, the online application form for the switching application would have to be submitted by 31 August 2020, though this deadline might be extended.

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 30-day visa vignettes

The guidance also instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expired between 24 January 2020 and 31 July 2020 should have completed an online form to request an extension of their visa validity to 31 July 2020. The Home Office has now given visa holders a ‘grace period’ up until 31 August to leave the UK.

Those who already extended their visas to 31 July 2020 via the online process have now automatically be given a ‘grace period’ up until 31 August 2020. Note that if you submitted an online form to extend your visa to 31 July 2020, and did not receive a response confirming the extension, you should resubmit the online form to request an extension.

Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

Salary reductions and furloughing migrants

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

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 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.

For tips on managing migrants in the contexts of the extension of the furlough scheme, the return to work or termination, please see this article.

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 Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

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 a 2-week quarantine on arrival. 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, 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 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 August 2020 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. The applications will be considered on a case-by-case basis.

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. For migrants applying to enter or remain in the UK on the basis of family life, the guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

 

*We intend to keep this page up to date with the latest developments on COVID-19 immigration policies and practices. Please bookmark it and check back regularly.

You can view our webinar on COVID-19, immigration and employment, recorded on 23 April 2020.

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 6 July 2020.

The main points are as follows:

  • Visa application centres around the world and in the UK are reopening.
  • 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 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Visa holders in the UK whose leave is expiring can submit an online form to the Home Office to request a visa extension until 31 July. Those who already extended their visas to 31 May 2020 will have their leave automatically extended to 31 July.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Reopening of UK and global visa application centres

Visa application centres, where applicants submit biometric data as required for most application types are now reopening. The centres in the UK and overseas have been closed for the past few months.

Overseas visa application centres are reopening under a phased approach. Please contact Samar Shams for information on whether the visa application centre in your location has opened.

Existing appointments at visa application centres in the UK are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

Some 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 not accepting any new bookings, though they will likely do so soon. In the meantime, applicants can submit their online applications and upload their supporting documents.

The Gov.UK webpage confirming the reopening states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Switching visas from within the UK

Many sponsored workers and other migrants have extended their visas to 31 July 2020 and are now unable to leave the UK before this new expiry date. It is essential that they now prepare applications for further leave to remain in the UK; these applications must be submitted before their extended leave expires.

Home Office guidance exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The guidance allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 July 2020 are eligible for the general switching allowance.

A further switching concession is available for those whose leave expires after 31 July 2020 but who urgently need to make a new application. The Home Office gives starting a new job or a new course of study and inability to leave the UK as example urgent circumstances. However, it seems from correspondence with the Home Office about this concession that they are interpreting it quite narrowly at the moment, so it is important to seek advice before relying on this concession.

Finally, a concession exists for those in the UK as a visitor or with leave of up to 6 months to switch from within the UK to a family visa route. This could include switching into fiancé, partner or parent visas. Under the current policy, the online application form for the switching application would have to be submitted by 31 July 2020, though this deadline might be extended.

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 30-day visa vignettes

The guidance also instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expires between 24 January 2020 and 31 July 2020 must complete an online form to request an extension of their visa validity to 31 July 2020.

Those who already extended their visas to 31 May 2020 via the online process will have their visa expiry dates automatically extended to 31 July 2020. Note that if you submitted an online form to extend your visa to 31 May 2020, and did not receive a response confirming the extension, you should resubmit the online form to request an extension.

Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

Salary reductions and furloughing migrants

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

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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. 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.

For tips on managing migrants in the contexts of the extension of the furlough scheme, the return to work or termination, please see this article or register for our Back to the Future of Work webinar on 2 July 2020.

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 Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

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 before 10 July 2020 from a country that is not on the UK’s travel corridors exemption list will be subject to a 2-week quarantine on arrival. 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, 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 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 July 2020 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. The applications will be considered on a case-by-case basis.

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. For migrants applying to enter or remain in the UK on the basis of family life, the guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

Register for our Back to the Future of Work webinar on 2 July 2020, covering return to work refusals and discrimination, ongoing hiring challenges and adjusting benefits and immigration processes to accommodate remote working. You can also view our webinar on COVID-19, immigration and employment, recorded on 23 April 2020.

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 12 June 2020.

The main points are as follows:

  • Visa application centres around the world and in the UK are reopening.
  • 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 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Visa holders in the UK whose leave is expiring can submit an online form to the Home Office to request a visa extension until 31 July. Those who already extended their visas to 31 May 2020 will have their leave automatically extended to 31 July.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Reopening of UK and global visa application centres

Visa application centres, where applicants submit biometric data as required for most application types are now reopening. The centres in the UK and overseas have been closed for the past few months.

Overseas visa application centres are reopening under a phased approach. Please contact Samar Shams for information on whether the visa application centre in your location has opened.

Existing appointments at visa application centres in the UK are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

The UK visa application centres are not accepting any new bookings, though they will likely do so soon. In the meantime, applicants can submit their online applications and upload their supporting documents.

The Gov.UK webpage confirming the reopening states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Switching to settlement routes

Many sponsored workers and other migrants have extended their visas to 31 July 2020 and are now unable to leave the UK before this new expiry date. It is essential that they now prepare applications for further leave to remain in the UK; these applications must be submitted before their extended leave expires.

Home Office guidance exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The guidance allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 July 2020 are eligible for the switching allowance.

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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK are reopening. In the meantime, the Home Office is requesting documents via email from certain applicants who have previously submitted biometric details; for these applications, the Home Office is proceeding with processing without fresh submission of biometric data. Please see below for more information on the reopening of UK visa application centres.

Replacing expired 30-day visa vignettes

The guidance also instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expires between 24 January 2020 and 31 July 2020 must complete an online form to request an extension of their visa validity to 31 July 2020.

Those who already extended their visas to 31 May 2020 via the online process will have their visa expiry dates automatically extended to 31 July 2020. Note that if you submitted an online form to extend your visa to 31 May 2020, and did not receive a response confirming the extension, you should resubmit the online form to request an extension.

Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

Salary reductions and furloughing migrants

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. 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.

For tips on managing migrants in the contexts of the extension of the furlough scheme, the return to work or termination, please see this article or register for our Back to the Future of Work webinar on 2 July 2020.

Right to work checks

The Home Office has published guidance 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.

Sponsorship of skilled workers

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Authorisation to work whilst Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

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 will be subject to a 2-week quarantine on arrival. 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:

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

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 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 now formally 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 July 2020 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. The applications will be considered on a case-by-case basis.

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. For migrants applying to enter or remain in the UK on the basis of family life, the guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

The Home Office has not confirmed whether those in the UK on visit visas are exceptionally able to switch from within the UK to other visa types. Normally visit visa holders have to return to their country of residence to apply for a different type of visa.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

You can view our webinar on COVID-19, immigration and employment, recorded on 23 April 2020.

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 12 May 2020.

The main points are as follows:

  • 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 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Visa holders in the UK whose leave is expiring can submit an online form to the Home Office to request a visa extension until 31 May 2020.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Switching to settlement routes

Many sponsored workers and other migrants have extended their visas to 31 May 2020 and are now unable to leave the UK before this new expiry date. It is essential that they now prepare applications for further leave to remain in the UK; these applications must be submitted before their extended leave expires.

Guidance updated 7 May 2020 exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance.

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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK have now all closed. Please see below for more information on closure of UK visa application centres.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. A previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

Replacing expired 30-day visa vignettes

The guidance also instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 must complete an online form to request an extension of their visa validity to 31 May 2020.

The Home Office aims to respond within 5 working days. Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

However, the process to extend leave to 31 May 2020 is not automatic. Visa holders who wish to extend their leave must make requests to do so by submitting the online form as outlined above.

Closure of UK visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed.

Existing appointments are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

The visa application centres are not accepting any new bookings.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Salary reductions and furloughing migrants

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. 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.

Sponsorship of skilled workers

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Authorisation to work whilst Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service</5>

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

Start date delays

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 will have to self-isolate. On 11 May 2020, the Government published its COVID-19 recovery strategy guidance in which it states that most international arrivals to the UK will soon be required to self-isolate for fourteen days on arrival into the UK. Narrow exemptions will be in place, for example to protect supply into the UK.

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, 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 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 now formally 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 May 2020 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. The applications will be considered on a case-by-case basis.

Right to work checks

The Home Office has published guidance 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.

Eligibility for settlement

The Home Office has not addressed the potential effects of absences due to coronavirus on sponsored skilled workers’ and other migrants’ 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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

The Home Office has not confirmed whether those in the UK on visit visas are exceptionally able to switch from within the UK to other visa types. Normally visit visa holders have to return to their country of residence to apply for a different type of visa.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

You can view our webinar on COVID-19, immigration and employment, recorded on 23 April 2020.

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 29 April 2020.

The main points are as follows:

  • Overseas applicants whose 30-day visas to travel to the UK have expired can apply to the Home Office for a replacement visa free of charge.
  • Visa holders in the UK whose leave is expiring can submit an online form to the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders in the UK whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Replacing expired 30-day visa vignettes

Guidance updated 28 April 2020 instructs overseas applicants holding 30-day visa vignettes to apply for replacement visa vignettes with new validity dates. 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 recently received their 30-day visa vignettes were unable to travel within the 30-day validity period. Their visa vignettes have expired. They can apply for replacement vignettes by emailing the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. The subject line should be ‘REPLACEMENT 30 DAY VISA’ and applicants should include their name, nationality, date of birth and application reference number (the GWF number) in the body of the email.

When Visa Application Centres reopen, the applicants will be contacted so that their replacement vignettes can be endorsed into their passports. The system will be in place until the end of 2020.

Visa extensions

UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 must complete an online form to request an extension of their visa validity to 31 May 2020.

The Home Office aims to respond within 5 working days. Applicants will receive a ‘status letter’ in pdf format by email confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

However, the process to extend leave to 31 May 2020 is not automatic. Visa holders who wish to extend their leave must make requests to do so by submitting the online form as outlined above.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do.

Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it 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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK have now all closed. Please see below for more information on closure of UK visa application centres.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. A previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

Closure of UK visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed.

Existing appointments are now being rescheduled. We are aware of cases where the Home Office has not emailed an applicant to confirm the rescheduling of their appointment. Applicants whose appointments have been affected should log in to the appointment booking system to check whether their appointments have been rescheduled.

The visa application centres are not accepting any new bookings.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Salary reductions and furloughing migrants

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. 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.

Sponsorship of skilled workers

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Authorisation to work whilst Tier 2 application is pending

The Home Office introduced a policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

Start date delays

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.

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 the moment. However a lockdown exit strategy might include self-isolation requirements.

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:

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

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 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 now formally 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.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 May 2020 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 mailto: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. The applications will be considered on a case-by-case basis.

Right to work checks

The Home Office has published guidance 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.

Eligibility for settlement

The Home Office has not addressed the potential effects of absences due to coronavirus on sponsored skilled workers’ and other migrants’ 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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

The Home Office has not confirmed whether those in the UK on visit visas are exceptionally able to switch from within the UK to other visa types. Normally visit visa holders have to return to their country of residence to apply for a different type of visa.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

Please register here for our webinar on COVID-19, immigration and employment on Thursday 23 April 2020 at 1pm.

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 17 April 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can submit an online form to the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 14 April 2020, requires UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to complete an online form to request an extension of their visa validity to 31 May 2020.

The Home Office aims to respond within 5 working days. Applicants will receive a ‘status letter’ in pdf format by email, or an updated Biometric Residence Permit card, confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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 updated 9 April 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

However, the process to extend leave to 31 May 2020 is not automatic. Visa holders who wish to extend their leave must make requests to do so by submitting the online form as outlined above.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do.

Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it 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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK have now all closed. Please see below for more information on closure of UK visa application centres.

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Closure of UK visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed. Those who had already scheduled appointments will have their appointments rescheduled. Others will not be able to book an appointment until further notice.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Furloughing migrants and COVID-19 income support schemes

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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.

Government guidance states that sponsors can furlough sponsored employees and reduce salaries to the lower of 80% of their normal salaries or £2,500 per month, whichever is lower. Sponsors can claim the job retention scheme funds. 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. Sponsored 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 was to provide for an exemption. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. Unless and until an exemption is published, sponsors may have to pay the difference between the job retention scheme funds and the salary minimum, if the salary minimum is higher. Please contact us for advice on this point.

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.

Sponsorship of skilled workers

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

New authorisation to work whilst Tier 2 application is pending

The Home Office introduced a new policy on 14 April 2020 allowing employees to start work whilst their Tier 2 or Tier 5 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.

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 Tier 2 and 5 priority change of circumstances service

The priority change of circumstances service has moved from a telephone to an email service. However, we understand that the service is now suspended. 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.

Normally, sponsors are able to use the priority change of circumstances service to expedite processing of requests for allocations of certificates of sponsorship. Without the service, sponsors might find that they do not have the certificates of sponsorship necessary to support visa extensions or switching applications of their existing and prospective employees. Please contact us for help if you are a sponsor in this situation.

Start date delays

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.

UK Visas and Immigration’s operations around the world are disrupted, causing problems for those with ongoing applications to come to the UK. 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.

Applicants who have recently received their temporary vignettes might now be unable to travel. Generally, if the applicants do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette and the work start date has to be within 3 months of the visa application being submitted. We are expecting the Home Office to issue a policy next week to address this situation, perhaps by automatically extending expired 30-day vignettes.

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.

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:

  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.

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.

In the absence of government guidance to the contrary, it seems that sponsors must still report a salary reduction if they put a sponsored migrant on unpaid leave.

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 has stated that they will keep the policy under review. 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.

Reporting job location changes

The Home Office has now formally 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

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

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 May 2020 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.

Right to work checks

The Home Office has published guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

The Home Office has not confirmed whether those in the UK on visit visas are exceptionally able to switch from within the UK to other visa types. Normally visit visa holders have to return to their country of residence to apply for a different type of visa.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

Please register here for our webinar on COVID-19 and immigration on Thursday 23 April 2020 at 1pm.

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 8 April 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • Employers can use the Coronavirus Job Retention Scheme 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 6 April 2020, requires UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to complete an online form to request an extension of their visa validity to 31 May 2020.

The Home Office aims to respond within 5 working days. Applicants will receive a ‘status letter’ in pdf format by email, or an updated Biometric Residence Permit card, confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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 updated 2 April 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

However, the process to extend leave to 31 May 2020 is not automatic. Visa holders who wish to extend their leave must make requests to do so by email as outlined above.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do.

Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it 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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK have now all closed. Please see below for more information on closure of UK visa application centres.

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Closure of UK visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed. Those who had already scheduled appointments will have their appointments rescheduled. Others will not be able to book an appointment until further notice.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Furloughing migrants and COVID-19 income support schemes

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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.

Government guidance states that sponsors can furlough sponsored employees and reduce salaries to the lower of 80% of their normal salaries or £2,500 per month, whichever is lower. Sponsors can claim the job retention scheme funds. 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. Sponsored 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 was to provide for an exemption. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. Unless and until an exemption is published, sponsors may have to pay the difference between the job retention scheme funds and the salary minimum, if the salary minimum is higher. Please contact us for advice on this point.

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.

Sponsorship of skilled workers and students

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

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:

  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.

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.

In the absence of government guidance to the contrary, it seems that sponsors must still report a salary reduction if they put a sponsored migrant on unpaid leave.

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 has stated that they will keep the policy under review. 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.

Start date delays

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. The COVID-19 pandemic will disturb the sponsorship timeline for thousands of UK employers and the Home Office has announced a number of provisions to mitigate the chaos.

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. Normally a sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship or the date the visa is granted, whichever is later. Sponsored workers must submit their visa applications within 3 months of their sponsor assigning their certificate of sponsorship. The Home Office refuses applications out-of-hand where certificates of sponsorship have expired but has stated that it will not do so whilst these special COVID-19 provisions are in place.

The Home Office is also making particular allowances for delays where sponsors are required to assign restricted certificates of sponsorship. These are the work authorisations for sponsored workers who are subject to the ‘cap’ or limit of 20,700 places per year. Please contact us for details of these particular allowances.

UK Visas and Immigration’s operations around the world are disrupted, causing problems for those with ongoing applications to come to the UK. 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.

Applicants who have recently received their temporary vignettes might now be unable to travel. There are also cases of UK Visas and Immigration being unable to send applicants their vignettes due to border closures and restrictions. If the applicants do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette. Generally the work start date has to be within 3 months of the visa application being submitted, but under the provisions discussed above, the Home Office will make case-by-case allowances for later start dates.

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 job location changes

The Home Office has now formally 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

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

Tier 2 and 5 priority change of circumstances service closure

The priority change of circumstances service is now closed. The service allowed 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.

One of the requests that sponsors were able to expedite through the priority change of circumstances service was the request to for renewal of their annual allocation of unrestricted certificates of sponsorship. Sponsors were required to submit these requests by the 5 April 2020. There might be cases of certificates of sponsorship not being allocated in time for sponsored workers to extend their visas. Affected sponsored workers might need to take advantage of the visa extension request process or the switching provisions described above. Again, it is not clear that the conditions of one’s leave, including the right to work, are extended by virtue of the request process.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

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 have expired or will expire before 31 May 2020 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.

Right to work checks

The Home Office has published guidance 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.

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 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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 6 April 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • Employers can use the Coronavirus Job Retention Scheme to furlough sponsored skilled worker employees. However they must ensure that the relevant minimum salary threshold continues to be met and that they fulfil reporting duties.
  • 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 3 April 2020, requires UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to email the Coronavirus Immigration Team to request an extension of their visa validity to 31 May 2020. Requests must be made in English and include the following:

  • The visa holder’s full name;
  • Their date of birth;
  • Their nationality;
  • Their visa reference number; and
  • Why they cannot return to their country of origin.

The Home Office aims to respond within 5 working days. Applicants will receive a ‘status letter’ in pdf format by email, or an updated Biometric Residence Permit card, confirming their visa extension. These should be kept on file and may be submitted with future UK visa applications, to minimise adverse effects of perceived overstaying.

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 updated 2 April 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’.

HHowever, the process to extend leave to 31 May 2020 is not automatic. Visa holders who wish to extend their leave must make requests to do so by email as outlined above.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do.

Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it 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.

To complete the application process the applicant must also submit documents and biometric data in person. The visa application centres in the UK have now all closed. Please see below for more information on closure of UK visa application centres.

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Closure of UK visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed. Those who had already scheduled appointments will have their appointments rescheduled. Others will not be able to book an appointment until further notice.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not change as a result of you not being able to attend an appointment.’ The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

Furloughing migrants and COVID-19 income support schemes

Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

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.

Government guidance states that sponsors can furlough sponsored employees and reduce salaries to the lower of 80% of their normal salaries or £2,500 per month, whichever is lower. Sponsors can claim the job retention scheme funds. 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. Sponsored 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. The minimum threshold is £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers, or the salary threshold specified for their role in the immigration rules, whichever is higher. Unless and until such an exemption is published, sponsors will have to pay the difference between the job retention scheme funds and the salary minimum, if the salary minimum is higher.

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.

Sponsorship of skilled workers and students

The government guidance on COVID-19 and sponsorship duties raises as many questions as it answers. We expect further clarifications and will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

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:

  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.

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.

In the absence of government guidance to the contrary, it seems that sponsors must still report a salary reduction if they put a sponsored migrant on unpaid leave.

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 has stated that they will keep the policy under review. 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.

Start date delays

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. The COVID-19 pandemic will disturb the sponsorship timeline for thousands of UK employers and the Home Office has announced a number of provisions to mitigate the chaos.

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.

Normally a sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship or the date the visa is granted, whichever is later. Sponsored workers must submit their visa applications within 3 months of their sponsor assigning their certificate of sponsorship. The Home Office refuses applications out-of-hand where certificates of sponsorship have expired but has stated that it will not do so whilst these special COVID-19 provisions are in place.

The Home Office is also making particular allowances for delays where sponsors are required to assign restricted certificates of sponsorship. These are the work authorisations for sponsored workers who are subject to the ‘cap’ or limit of 20,700 places per year. Please contact us for details of these particular allowances.

UK Visas and Immigration’s operations around the world are disrupted, causing problems for those with ongoing applications to come to the UK. 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.

Applicants who have recently received their temporary vignettes might now be unable to travel. There are also cases of UK Visas and Immigration being unable to send applicants their vignettes due to border closures and restrictions. If the applicants do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette. Generally the work start date has to be within 3 months of the visa application being submitted, but under the provisions discussed above, the Home Office will make case-by-case allowances for later start dates.

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 job location changes

The Home Office has now formally 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

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

Tier 2 and 5 priority change of circumstances service closure

The priority change of circumstances service is now closed. The service allowed 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.

One of the requests that sponsors were able to expedite through the priority change of circumstances service was the request to for renewal of their annual allocation of unrestricted certificates of sponsorship. Sponsors were required to submit these requests by the 5 April 2020. There might be cases of certificates of sponsorship not being allocated in time for sponsored workers to extend their visas. Affected sponsored workers might need to take advantage of the visa extension request process or the switching provisions described above. Again, it is not clear that the conditions of one’s leave, including the right to work, are extended by virtue of the request process.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector which might therefore be disproportionately affected.

hat 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 have expired or will expire before 31 May 2020 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.

Right to work checks

The Home Office has published guidance 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.

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.

UK entry bans for working on a visitor visa

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.

Under the immigration rules, such individuals might be banned from re-entering the UK for one year from the date that they eventually leave. The general grounds for refusal of visa applications in the immigration rules dictate a one-year ban from the UK where a visa holder breaches the conditions of their visa. The ban does not apply to all visa application types. For example, it does not apply to some family-based visa applications.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 31 March 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • Employers can use the Coronavirus Job Retention Scheme to furlough sponsored skilled worker employees. However they must ensure that the relevant minimum salary threshold continues to be met and that they fulfil reporting duties.
  • Sponsors are not required to report a change in job location for all 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 24 March 2020, invites UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to email the Coronavirus Immigration Team to request an extension of their visa validity to 31 May 2020. Requests must be made in English and include the following:

  • The visa holder’s full name;
  • Their date of birth;
  • Their nationality;
  • Their visa reference number; and
  • Why they cannot return to their country of origin.

Although the guidance published on the website only gives border closures as an example of a reason for not being able to return to one’s country of origin, in a Coronavirus factsheet for UK visa holders dated 24 March 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights. Elsewhere, the factsheet mentions self-isolation as a reason a visa-holder might not be able to travel.

The guidance published on the Gov.UK website states that the visa holder will be notified of receipt of their request and also of when their visa has been extended. This correspondence should be kept on file for submission with future UK visa applications, to minimise adverse effects of perceived overstaying.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’. However, visa holders who wish to extend their leave must follow the process for doing so.

The new process to extend leave to 31 May 2020 is not automatic and the new guidance does not differentiate between visa holders of different nationalities. Under the updated guidance, all eligible visa holders, including Chinese nationals, wishing to extend visas otherwise expiring before 31 May 2020 must follow the above process to request their visa extensions.

Chinese nationals’ visas were automatically extended to 30 March 2020 under a previous version of the guidance. The circulated factsheet states that all nationalities visas are extended to 31 March 2020.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it extends the terms of an applicant’s visa 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.

To complete the application process the applicant must also submit documents and biometric data in person. At the time of writing, many sites where applicants can submit biometric data are still open. The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Closure of visa application centres

Despite the provisions allowing switching from within the UK into a different visa category, the UK visa application centres, where applicants submit biometric data as required for most application types, have closed. Those who had already scheduled appointments will have their appointments rescheduled. Others will not be able to book an appointment until further notice.

The Gov.UK webpage confirming the closure states ‘Your immigration status will not be negatively affected as a result of you not being able to attend an appointment.’

Sponsorship of skilled workers and students

The Government needs to address the effects of Covid-19 on sponsorship duties in official, published guidance as soon as possible. We will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Absences

The Home Office’s email message to sponsors on 26 March 2020 confirms the policy of relaxed sponsor duties relating to reporting absences are still in place. There was some confusion as to whether these policies were maintained because the Government deleted it from the COVID-19 guidance published on the Gov.UK website when it update that guidance on 24 March 2020.

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.

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.

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

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.

Start date delays

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. The COVID-19 pandemic will disturb the sponsorship timeline for thousands of UK employers.

A sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship, which is the work authorisation assigned by their sponsor, or the date the visa is granted, whichever is later.

Those whose visas have already been granted, and who now do not wish to, or cannot, travel to the UK for several months, are in a bind. The clock has started ticking for them to take up their work in the UK. Spencer West LLP’s immigration team is aware of informal exceptions to the 28-day rule being granted on a case-by-case basis. However, the Home Office has not published guidance relaxing the 28-day restriction on delaying a Tier 2 General migrant’s start date.

To further complicate matters, 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. If they do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette.

The Home Office’s previous guidance stated that they would “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.” This general indemnity against compliance action is missing from the COVID-19 guidance published on 24 March 2020.

The allowance for employers not to report sponsored skilled workers’ absences they have authorised, if it is still in place, could help with delays to start dates due to coronavirus.

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 Home Office has now formally confirmed to sponsors that they are not required to report job location changes relating to homeworking due to the coronavirus, in their email message of 26 March 2020. 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.

Tier 2 and 5 priority change of circumstances service closure

The priority change of circumstances service is now closed. The service allowed 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.

One of the requests that sponsors were able to expedite through the priority change of circumstances service was the request to for renewal of their annual allocation of unrestricted certificates of sponsorship. Sponsors are required to submit these requests by the 5 April 2020. There might be cases of certificates of sponsorship not being allocated in time for sponsored workers to extend their visas. They might need to take advantage of the visa extension request process or the switching provisions described above. Again, it is not clear that the conditions of one’s leave, including the right to work, are extended by virtue of the request process.

Other changes for which sponsors could request expedited services include adding a new Level 1 User, replacing and Authorising Officer and adding a representative.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector, so those businesses might be most affected by cooling off.

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 have expired or will expire before 31 May 2020 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.

Migrant access to COVID-19 income support schemes

It now seems that Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

Tier 2 migrants and most other UK visa holders cannot access public funds, under the terms of their visas. At the time of writing the Home Office has not published any information on an exception to the prohibition. However, the definition of ‘public funds’ in the Immigration Rules includes a list of the relevant support and the funds available under the COVID-19 support schemes are not on that that list.

Further, support under the Coronavirus Job Retention Scheme might not count as accessing public funds as the funds are paid to the employer. Funds under the Self-employment Income Support Scheme are paid directly to the individual so these might be more problematic.

However, sponsors must ensure that furloughed sponsored skilled workers’ salaries do not drop below the minimum thresholds of £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers. Sponsors must also continue to meet the minimum salary levels specific to their roles.

In practice, this means that sponsors can furlough employees and reduce salaries to the higher of the category and the job-specific threshold. Sponsors can claim the job retention scheme funds, but will still have to pay the difference between the job retention scheme funds and the salary minimum, if the salary minimum is higher. Sponsors must report any reduction of salary within 10 working days.

Right to work checks

The Home Office has published guidance 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.

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.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 30 March 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • The government has not relaxed visa conditions prohibiting migrants’ access to public funds. Therefore, migrants are not eligible for income support schemes.
  • Sponsors are not required to report a change in job location for all 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 24 March 2020, invites UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to email the Coronavirus Immigration Team to request an extension of their visa validity to 31 May 2020. Requests must be made in English and include the following:

  • The visa holder’s full name;
  • Their date of birth;
  • Their nationality;
  • Their visa reference number; and
  • Why they cannot return to their country of origin.

Although the guidance published on the website only gives border closures as an example of a reason for not being able to return to one’s country of origin, in a Coronavirus factsheet for UK visa holders dated 24 March 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights. Elsewhere, the factsheet mentions self-isolation as a reason a visa-holder might not be able to travel.

The guidance published on the Gov.UK website states that the visa holder will be notified of receipt of their request and also of when their visa has been extended. This correspondence should be kept on file for submission with future UK visa applications, to minimise adverse effects of perceived overstaying.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’. However, visa holders who wish to extend their leave must follow the process for doing so.

The new process to extend leave to 31 May 2020 is not automatic and the new guidance does not differentiate between visa holders of different nationalities. Under the updated guidance, all eligible visa holders, including Chinese nationals, wishing to extend visas otherwise expiring before 31 May 2020 must follow the above process to request their visa extensions.

Chinese nationals’ visas were automatically extended to 30 March 2020 under a previous version of the guidance. The circulated factsheet states that all nationalities visas are extended to 31 March 2020.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it extends the terms of an applicant’s visa 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.

To complete the application process the applicant must also submit documents and biometric data in person. At the time of writing, many sites where applicants can submit biometric data are still open. The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this. An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Sponsorship of skilled workers and students

The Government needs to address the effects of Covid-19 on sponsorship duties in official, published guidance as soon as possible. We will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Absences

The Home Office’s email message to sponsors on 26 March 2020 confirms the policy of relaxed sponsor duties relating to reporting absences are still in place. There was some confusion as to whether these policies were maintained because the Government deleted it from the COVID-19 guidance published on the Gov.UK website when it update that guidance on 24 March 2020.

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.

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.

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

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.

Start date delays

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. The COVID-19 pandemic will disturb the sponsorship timeline for thousands of UK employers.

A sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship, which is the work authorisation assigned by their sponsor, or the date the visa is granted, whichever is later.

Those whose visas have already been granted, and who now do not wish to, or cannot, travel to the UK for several months, are in a bind. The clock has started ticking for them to take up their work in the UK. Spencer West LLP’s immigration team is aware of informal exceptions to the 28-day rule being granted on a case-by-case basis. However, the Home Office has not published guidance relaxing the 28-day restriction on delaying a Tier 2 General migrant’s start date.

To further complicate matters, 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. If they do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette.

The Home Office’s previous guidance stated that they would “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.” This general indemnity against compliance action is missing from the COVID-19 guidance published on 24 March 2020.

The allowance for employers not to report sponsored skilled workers’ absences they have authorised, if it is still in place, could help with delays to start dates due to coronavirus.

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 Home Office has now formally confirmed to sponsors that they are not required to report job location changes relating to homeworking due to the coronavirus, in their email message of 26 March 2020. 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.

Tier 2 and 5 priority change of circumstances service closure

The priority change of circumstances service is now closed. The service allowed 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. One of the requests that sponsors were able to expedite through the priority change of circumstances service was the request to for renewal of their annual allocation of unrestricted certificates of sponsorship. Sponsors are required to submit these requests by the 5 April 2020. There might be cases of certificates of sponsorship not being allocated in time for sponsored workers to extend their visas. They might need to take advantage of the visa extension request process or the switching provisions described above. Again, it is not clear that the conditions of one’s leave, including the right to work, are extended by virtue of the request process.

Other changes for which sponsors could request expedited services include adding a new Level 1 User, replacing and Authorising Officer and adding a representative.

Cooling off - Sponsored workers might not be able to return to the UK for one year

Another point to consider is whether cooling off may be triggered for those Tier 2 sponsored workers whose visas will expire whilst they are overseas. Under cooling off provisions, they would not be able to return to the UK for 12 months from the date that they left, if they can demonstrate the date they left, or from the date of expiry of their visa, if they cannot demonstrate the date that they left.

Sponsors often ‘bench’ Tier 2 Intra Company Transfer migrants overseas when workloads are low. The practice is common in the tech sector, so those businesses might be most affected by cooling off.

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 have expired or will expire before 31 May 2020 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.

Migrant access to COVID-19 income support schemes

It now seems that Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

Tier 2 migrants and most other UK visa holders cannot access public funds, under the terms of their visas. At the time of writing the Home Office has not published any information on an exception to the prohibition. However, the definition of ‘public funds’ in the Immigration Rules includes a list of the relevant support and the funds available under the COVID-19 support schemes are not on that that list.

Further, support under the Coronavirus Job Retention Scheme might not count as accessing public funds as the funds are paid to the employer. Funds under the Self-employment Income Support Scheme are paid directly to the individual so these might be more problematic.

However, sponsors must ensure that furloughed sponsored skilled workers’ salaries do not drop below the minimum thresholds of £41,500 for Intra Company Transfer sponsored workers or £30,000 for Tier 2 General sponsored workers. Sponsors must also continue to meet the minimum salary levels specific to their roles.

In practice, this means that sponsors can furlough employees and reduce salaries to the higher of the category and the job-specific threshold. Sponsors can claim the job retention scheme funds, but will still have to pay the difference between the job retention scheme funds and the salary minimum, if the salary minimum is higher. Sponsors must report any reduction of salary within 10 working days.

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.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 27 March 2020.

The main points are as follows:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders whose leave is expiring are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application.
  • The government has not relaxed visa conditions prohibiting migrants’ access to public funds. Therefore, migrants are not eligible for income support schemes.
  • Sponsors are not required to report a change in job location for all 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.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s Covid-19 guidance for those holding temporary UK visas, updated on 24 March 2020, invites UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to email the Coronavirus Immigration Team to request an extension of their visa validity to 31 May 2020. Requests must be made in English and include the following:

  • The visa holder’s full name;
  • Their date of birth;
  • Their nationality;
  • Their visa reference number; and
  • Why they cannot return to their country of origin.

Although the guidance published on the website only gives border closures as an example of a reason for not being able to return to one’s country of origin, in a Coronavirus factsheet for UK visa holders dated 24 March 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights. Elsewhere, the factsheet mentions self-isolation as a reason a visa-holder might not be able to travel.

The guidance published on the Gov.UK website states that the visa holder will be notified of receipt of their request and also of when their visa has been extended. This correspondence should be kept on file for submission with future UK visa applications, to minimise adverse effects of perceived overstaying.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’. However, visa holders who wish to extend their leave must follow the process for doing so.

The new process to extend leave to 31 May 2020 is not automatic and the new guidance does not differentiate between visa holders of different nationalities. Under the updated guidance, all eligible visa holders, including Chinese nationals, wishing to extend visas otherwise expiring before 31 May 2020 must follow the above process to request their visa extensions.

Chinese nationals’ visas were automatically extended to 30 March 2020 under a previous version of the guidance. The circulated factsheet states that all nationalities visas are extended to 31 March 2020.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. Only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance. Although the published guidance is not entirely clear on this point, the Home Office has confirmed it in an email message sent to sponsors on 26 March 2020.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it extends the terms of an applicant’s visa 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.

To complete the application process the applicant must also submit documents and biometric data in person. At the time of writing, many sites where applicants can submit biometric data are still open. The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer visa holder before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Migrant access to COVID-19 income support schemes

It is not clear whether Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme or the Self-employment Income Support Scheme, under which the government will pay 80% of salaries or profits respectively.

Tier 2 migrants and most other UK visa holders cannot access public funds, under the terms of their visas. At the time of writing the Home Office has not published any information on an exception to the prohibition. However, the definition of ‘public funds’ in the Immigration Rules includes a list of the relevant support and the funds available under the COVID-19 support schemes do not seem to be covered by that list.

Further, support under the Coronavirus Job Retention Scheme might not count as accessing public funds as the funds are paid to the employer. Funds under the Self-employment Income Support Scheme are paid directly to the individual so these might be more problematic.

Sponsorship of skilled workers and students

The Government needs to address the effects of Covid-19 on sponsorship duties in official, published guidance as soon as possible. We will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Absences

The Home Office’s email message to sponsors on 26 March 2020 confirms the policy of relaxed sponsor duties relating to reporting absences are still in place. There was some confusion as to whether these policies were maintained because the Government deleted it from the COVID-19 guidance published on the Gov.UK website when it update that guidance on 24 March 2020.

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.

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.

Start date delays

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. The COVID-19 pandemic will disturb the sponsorship timeline for thousands of UK employers.

A sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship, which is the work authorisation assigned by their sponsor, or the date the visa is granted, whichever is later.

Those whose visas have already been granted, and who now do not wish to, or cannot, travel to the UK for several months, are in a bind. The clock has started ticking for them to take up their work in the UK. Spencer West LLP’s immigration team is aware of informal exceptions to the 28-day rule being granted on a case-by-case basis. However, the Home Office has not published guidance relaxing the 28-day restriction on delaying a Tier 2 General migrant’s start date.

To further complicate matters, 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. If they do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette.

The Home Office’s previous guidance stated that they would “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.” This general indemnity against compliance action is missing from the COVID-19 guidance published on 24 March 2020.

The allowance for employers not to report sponsored skilled workers’ absences they have authorised, if it is still in place, could help with delays to start dates due to coronavirus.

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 Home Office has now formally confirmed to sponsors that they are not required to report job location changes relating to homeworking due to the coronavirus, in their email message of 26 March 2020. 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.

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 have expired or will expire before 31 May 2020 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

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.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

This article was written by Samar Shams, Spencer West LLP Immigration and Global Mobility partner. It was originally published on 16 March 2020 and was updated on 25 March 2020.

On 24 March 2020, the Government updated its Covid-19 guidance for those holding temporary UK visas. 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:

  • Visa holders whose leave is expiring can email the Home Office to request a visa extension until 31 May 2020.
  • Temporary visa holders are eligible to switch from within the UK to visa routes that would usually require them to travel to their home countries to submit an application
  • The Home Office has now informally confirmed to immigration law practitioners that sponsors are not required to report a change in job location for all sponsored migrants working from home. However, homeworking arrangements should be documented.
  • The previous version of the Government’s Coronavirus immigration guidance relaxed sponsor duties relating to absences, but these allowances are absent from the current guidance.
  • The effects of absences due to the coronavirus on sponsored migrant’s eligibility for settlement in the UK remain unknown.
  • Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

Visa extensions

The Home Office’s updated guidance invites UK visa holders whose leave expires between 24 January 2020 and 31 May 2020 to email the Coronavirus Immigration Team to request an extension of their visa validity to 31 May 2020. Requests must be made in English and include the following:

  • The visa holder’s full name;
  • Their date of birth;
  • Their nationality;
  • Their visa reference number; and
  • Why they cannot return to their country of origin.

Although the guidance published on the website only gives border closures as an example of a reason for not being able to return to one’s country of origin, in a Coronavirus factsheet for UK visa holders dated 24 March 2020 and circulated to immigration law practitioners, flight suspensions are given as an example. Visa holders might wish to attach documentation of their difficulties in booking return travel such as pdf prints of unsuccessful internet searches for flights. Elsewhere, the factsheet mentions self-isolation as a reason a visa-holder might not be able to travel.

The guidance published on the Gov.UK website states that the visa holder will be notified of receipt of their request and also of when their visa has been extended. This correspondence should be kept on file for submission with future UK visa applications, to minimise adverse effects of perceived overstaying.

Under the current immigration rules, with no allowances made in relation to the pandemic, if a visa-holder overstays for more than 30 days, they could be ineligible for a visa, other than some family-based visas, for one year from the date they leave the UK. The factsheet states that ‘no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future’. However, visa holders who wish to extend their leave must follow the process for doing so.

The new process to extend leave to 31 May 2020 is not automatic and the new guidance does not differentiate between visa holders of different nationalities. Under the updated guidance, all eligible visa holders, including Chinese nationals, wishing to extend visas otherwise expiring before 31 May 2020 must follow the above process to request their visa extensions. Chinese nationals’ visas were automatically extended to 30 March 2020 under a previous version of the guidance. The circulated factsheet states that all nationalities visas are extended to 31 March 2020.

It is not clear that the above requests for extensions constitute ‘applications for further leave to remain’ under the Immigration Rules. Therefore, technically we do not know whether the conditions of applicants’ leave are extended through the above visa extension request process. For example, if your visa authorises you to work in the UK, it is not clear that your right to work is extended whilst you await a decision on your request. It is possible that the Home Office intended for conditions of leave to be extended through this request process but they did not explicitly state that they would be. Hopefully the Home Office will clarify the terms of the visas extended under this process shortly.

Switching to settlement routes

The guidance also exceptionally allows those holding temporary UK visas to switch to visa routes leading to settlement in the UK. The policy allows applicants to switch to the routes leading to settlement without having to return to their countries of origin as they would otherwise be required to do. It seems from the published guidance that only temporary visa holders whose leave will expire before 31 May 2020 are eligible for the switching allowance but this is not entirely clear.

In contrast to the above visa extension request process, the switching process constitutes submission of an application under the immigration rules. Therefore, it extends the terms of an applicant’s visa 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.

To complete the application process the applicant must also submit documents and biometric data in person. At the time of writing, many sites where applicants can submit biometric data are still open. The circulated factsheet states that a switching applicant ‘will not be regarded as an overstayer or be subject to enforcement action if [they]’re unable to attend a biometric appointment due to coronavirus or if there are delays in processing [their] application.’

The guidance states that those who have extended their visas under the above request process are eligible to switch under the new guidance. This implies that the request process extends the conditions of one’s visa too, but again, the Home Office has not explicitly stated this.

An example of a switch that might be permitted would be a Tier 2 Intra Company Transfer visa holder switching to Tier 2 General. The previous version of the Covid-19 guidance explicitly allowed this type of switch. Normally, Tier 2 Intra Company Transfer visa holders would not be allowed to switch to Tier 2 General from within the UK and they would have to wait one year from the time they left the UK as a Tier 2 Intra Company Transfer national before they would be eligible to apply for a Tier 2 General visa from their home country.

The permission to switch from within the UK, to routes allowing for settlement, might reflect a behind-the-scenes shift in the Government’s published plans for the future immigration system. Similar switching provisions were proposed by the previous Government in their December 2018 White Paper ‘The UK ‘s future skills-based immigration system’. That paper envisaged allowing in-country switching for Tier 2 Intra Company Transfers and even for visit visa holders but there has been little mention of new switching allowances from the government since the publication of that paper over a year ago. Regarding the Government’s emphasis in the updated Covid-19 immigration guidance on permitting switching into settlement routes, it might indicate that the Government is taking the Migration Advisory Committee’s recommendation, in its report on the proposed points-based system and salary thresholds, to review the immigration rules on settlement.

Sponsorship of skilled workers and students

The Government needs to address the effects of Covid-19 on sponsorship duties in official, published guidance as soon as possible. We will continue to update this article, to provide the latest information and analysis for sponsors and their sponsored skilled workers.

Absences

Confusingly, in the previous version of its general Covid-19 immigration guidance, the Home Office relaxed sponsor duties relating to absences for all nationalities but those provisions are missing from the version of the Covid-19 guidance published on 24 March 2020.

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.

The previous coronavirus immigration guidance relaxed sponsorship duties relating to absences as follows:

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

The relaxed provisions on absences are no longer on the Home Office website and it is unclear whether sponsors are still able to take use them. The Home Office might have chosen to revoke these provisions because, if the effects of the coronavirus pandemic on businesses last several months, 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.

Start date delays

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. The Covid-19 pandemic will disturb the sponsorship timeline for thousands of UK employers.

A sponsor cannot delay a Tier 2 General migrant’s start date by more than 28 days from the start date on their certificate of sponsorship, which is the work authorisation assigned by their sponsor, or the date the visa is granted, whichever is later.

Those whose visas have already been granted, and who now do not wish to, or cannot, travel to the UK for several months, are in a bind. The clock has started ticking for them to take up their work in the UK. To further complicate matters, 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. If they do not travel within the 30-day validity of the vignette, they will have to re-apply for the vignette.

The Home Office’s previous guidance stated that they would “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.” This general indemnity against compliance action is missing from the Covid-19 guidance published on 24 March 2020.

The allowance for employers not to report sponsored skilled workers’ absences they have authorised, if it is still in place, could help with delays to start dates due to coronavirus.

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 Home Office has informally confirmed to immigration law practitioners that sponsors 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.

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 have expired or will expire before 31 May 2020 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

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.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Samar Shams, Spencer West LLP Immigration and Global Mobility partner, at samar@spencer-west.com.

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 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

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 samar@spencer-west.com.


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