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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 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.