Coronavirus Immigration Update

COVID-19, or coronavirus, is having a monumental impact on everyday life for millions of people at home and abroad. For those looking to migrate to the UK, those in the middle of a visa application, those already here with a visa expiry date in the coming months, and their sponsors, the pandemic has caused logistical problems on top of a worsening public health crisis. 

We have set out some guidance below on the various ways the pandemic is affecting sponsored migrants and their employers, following up to date guidance issued by the Home Office.

Travel/application guidance 

Those in the UK who have a visa expiring

Migrants, of any nationality, who are in the UK legally and who planned to return home prior to their visa expiring but who cannot leave the UK due to the travel restrictions or to self-isolation will have their visas extended to 31 May 2020.

In order to take advantage of this, migrants must email the Coronavirus Immigration Team on CIH@homeoffice.gov.uk to explain the situation, providing the following details:

• their full name (include any middle names)
• their date of birth (dd/mm/yyyy)
• their nationality
• their previous visa reference number
• why they cannot go back to their home country (e.g. the border has closed)

We understand that the Coronavirus Immigration Team will then update the migrant’s relevant details on UKVI databases. These migrants will then be told that (1) UKVI have noted their details, (2) that they will not be subject to any enforcement action if their leave has expired, and (3) that any period of overstaying will not be held against them in future applications.

Currently, this relaxation in the rules only applies to migrants whose leave expires between 24 January 2020 and 31 May 2020. It may well be extended later, depending on how the situation develops and if restrictions on movement are increasingly tightened across the globe.

In addition, the Home Office has confirmed a relaxation of restrictions in relation to being able to apply from within the UK (where a migrant would ordinarily need to apply for their visa from overseas). For example, a Tier 2 ICT migrant will now be able to switch in-country into the Tier 2 General route. They will still need to meet the same visa requirements and pay the same application fee. This will include those migrants whose leave has been auto extended to 31 March 2020.

Unfortunately, this concession was made before the UKVCAS application centres in the UK closed (see our comments below). So currently it is of limited practical importance, but hopefully this option will be available soon when they may re-open the centres in 6 weeks’ time.

The closure of Visa Application Centres in the UK and overseas

Many visa application centres across the world are closing or offering limited appointments. Outside of the UK, centres are run by either VFS Global or TLScontact. VFS have an FAQ page available. For TLScontact, migrants can go to the page for their chosen visa application centre to get an update on the opening hours and available appointments for the centre.

If a visa centre overseas still holds a migrant’s passport, the migrant should contact the visa centre to obtain an update. Passports are still being returned to migrants, where courier routes are still open.

As of 27 March 2020, the UK has closed all its UKVCAS application centres in the UK.  Applicants who have already booked to attend an appointment in the UK before the closure was announced should be contacted by either the Home Office or Sopra Steria, the company that manages the visa application centres in the UK.

Even if applicants can get to a centre, they are likely to find preparing for their visa application (from outside and inside the UK) is difficult. Many English language test centres are closed, police registration checks in the London Metropolitan area have been suspended and Life in the UK test centres are currently closed.

Travel to the UK once a visa is granted

Border closures across the globe, together with flight cancellations, mean that some individuals who have successfully applied for their visa overseas and have received their passport endorsed with the 30-day travel vignette can no longer travel within the 30-day validity window.

The current advice is to apply for a new vignette if the migrant is unable to travel during this window. However, with many centres closing or remaining closed, this is likely to affect travel plans for quite some time. We are awaiting further Home Office guidance on whether this requirement will be relaxed.

Collection of BRP cards once in the UK

We are not aware of any significant delays in production of Biometric Residence Permits (BRP) cards, and in the UK post offices remain open for collection, though this may change quickly and with little warning. 

For migrants who have applied in-country, the TNT courier service is still running, but they are experiencing delays due to a shortage of staff. Again, this may change quickly with little warning so there is a risk a migrant will not be able to receive their BRP cards, which would normally be required to evidence their right to work in the UK. 

Absences from the UK

As the pandemic spread over the last month, many individuals returned to their country of origin to be with family. Others were overseas and now cannot return to the UK as flights are cancelled and borders closed. However, applications for Indefinite Leave to Remain require the applicant to have spent at least half the year in every 12-month period in the UK, unless exceptional circumstances apply. Similar provisions apply to EU nationals seeking Settled Status.  While it is hoped that the Home Office would consider such absences to amount to exceptional circumstances, again, we await specific guidance on this point. Anyone at risk of exceeding the permitted absences for a settlement application should keep accurate absence records, as well as documentation explaining the reason for such absences, where available (e.g. evidence of border closures or flight cancellations).

Sponsor guidance 

Absence reporting

The Home Office has confirmed that sponsors are not required to report absences related to coronavirus, provided the absence has been authorised by the sponsor (such as sickness absence, self-isolation or inability to travel due to flight or travel restrictions).

In addition, during the COVID-19 pandemic, sponsors do not need to withdraw sponsorship if an employee is absent from work without pay for four weeks or more.  This is a welcome relaxation of the strict rules on unpaid leave for sponsored migrants. However, this will be kept under review by the Home Office.

Home working

The vast majority of employees are now working from home where they are able to do so. Sponsors do not need to report a change of circumstances against their sponsored employees’ certificates of sponsorship if they are now working from home due to the pandemic. However, if the migrant is working from home (or from a location other than reported on the Certificate of Sponsorship) for a reason unrelated to the pandemic, the sponsor would need to report this as a change of circumstances in the usual way.

Delayed start dates

Prior to the pandemic, sponsors could only delay a migrant’s start date by up to 28 days once the visa had been issued. Flight restrictions and border closures are likely to cause significant delays to start dates for many new employees. Our advice is to report these delays against the migrant’s certificate of sponsorship with an explanation in the report that it’s because of the Covid-19 pandemic and keep as detailed a record of the circumstances leading to the delay as possible.

Right to work checks

The Home Office has confirmed that employers are still expected to carry out right to work checks on (1) new starters and (2) current workers with time-limited leave to remain that is due to expire, to make sure that they have the ongoing right to work in the UK. If an employer fails to do so and the individual does not have the right to work in the UK, the organisation will not be able to establish a statutory excuse against liability for a civil penalty.

However, the Home Office has recognised that employers will struggle to carry out in-person right to work checks if their workforce is working from home because of the COVID-19 outbreak and so has announced a temporary relaxation of the rules, as set out below.

Conducting a right to work check during the temporary COVID-19 measures

Some workers will have been issued with a Biometric Residence Permit (“BRP”) (including sponsored workers and those with leave under other immigration routes, e.g. leave as a PBS Dependant or under the Tier 5 (Youth Mobility Scheme) route) or will have Settled/Pre-Settled status under the EU Settlement Scheme. Right to work checkers can carry out “online” right to work checks for these individuals in the usual way – by asking the individual to share details of their BRP or (for those with Settled/Pre-Settled Status) their ID document number through the gov.uk portal at https://www.gov.uk/prove-right-to-work. Employers can ascertain the identity of the individual through a video call. 

For workers who do not have a BRP or Settled/Pre-Settled Status (including British citizens), the Home Office has confirmed that employers should carry out the following process:

Stage 1

For any right to work checks carried out from 30 March 2020, the right to work checker should:

• Ask the individual to send them a scanned copy or photo of their original right to work document (e.g. their passport) by email or a mobile App
• Have a videocall with the individual and ask them to hold the original document(s) to the camera and check this against the digital copy they have provided
• Record the date of the check on a copy of the document and mark it as “adjusted check undertaken on [insert date] due to COVID-19”

If the individual cannot evidence their right to work in the UK, the employer should contact the Home Office Employer Checking Service. They will be sent a Positive Verification Notice if the person does have the right to work in the UK, which will provide a statutory excuse for 6 months from the date of the notice. 

The Home Office has warned that employers should be careful not to discriminate against anyone who cannot evidence that they have the right to work in the UK. If this situation arises, we recommend that you contact Doyle Clayton for further guidance.

Stage 2

Within 8 weeks of the government’s COVID-19 measures coming to an end, employers must carry out follow-up (“retrospective”) right to work checks for any workers that it carried out the Stage 1 process for. This retrospective check must follow the usual rules for “manual” right to work checks.

When the right to work checker carries out the retrospective check, they should write on the copy (in addition to the usual wording confirming the time and date the check was carried out): 

“The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

The Home Office has confirmed that if employers follow the Stage 1 and Stage 2 processes, they will establish a statutory excuse against illegal working. If an employer discovers when they carry out the Stage 2 process that an individual does not have the right to work in the UK, they must end the person’s employment.

Note that the Home Office guidance was issued on 30 March 2020 and does not say that it applies retrospectively. So, it is not clear whether employers who followed a right to work check process along the same lines as the Stage 1 process before 30 March 2020 would establish a statutory excuse, although we would expect the Home Office to take a pragmatic approach.

Employers who have carried out manual right to work checks “virtually” over the last few weeks due to the COVID-19 outbreak should immediately carry out the Stage 1 process described above and then the Stage 2 process later.

Pay reductions

Sponsors must be mindful that a change in salary for a sponsored worker must be reported against the employee’s certificate of sponsorship within 10 working days. Sponsors should also be careful to ensure any reduction in salary does not take the migrant below the relevant salary threshold. A new visa application may be required, depending on the extent of the change in salary. We await further Home Office guidance on this issue, as many companies are now seeking to reduce working hours and pay. 

Furloughing sponsored employees

The Government has launched the Coronavirus Job Retention Scheme, which is designed to support employers whose operations have been severely affected by COVID-19. The scheme will cover 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions (so capped at 3%) on that subsidised wage. We have put together a separate Frequently Asked Questions note on the Scheme here. 

If your business has staff who cannot work from home, the Coronavirus Job Retention Scheme would certainly be an option for your settled staff, but the Home Office has not yet published guidance on its approach to furloughing sponsored workers; in particular, whether or not you can continue to sponsor furloughed workers who are not permitted to carry out any work for you while furloughed.  

Making redundancies

While the Coronavirus Job Retention Scheme has been put in place to attempt to avoid the need for redundancies, unfortunately there may come a point where some businesses need to close sites. If this is the case, sponsors must remember that termination of a sponsored employee’s employment must be reported to the Home Office via the sponsor licence within 10 working days. That worker will then have their leave curtailed down to 60 days, during which time they must leave the UK or find another sponsor.

These are challenging times for businesses across the board and the situation is subject to change at short notice. Please get in touch with the Doyle Clayton Immigration team who will be able to provide you with advice on the employment law and immigration implications of COVID-19.