The Implications of Redundancy for Sponsored Workers
The Implications of Redundancy for Sponsored Workers
Elisabeth Kynaston, Zahira Patel and Adam Cotterill discuss the implications that redundancy has on sponsored workers in parts one and two of the podcast. View the podcasts and transcripts below.
Part One: Going through the process and searching for a new role
In part one Elisabeth Kynaston and Zahira Patel explore the implications of redundancy on a sponsored worker, discussing the main factors which an employee should keep in mind when going through the redundancy process and searching for a new role.
Part One: Going through the process and searching for a new role. Click here for the transcript
Elisabeth Kynaston and Zahira Patel explore the implications of redundancy on a sponsored worker, discussing the main factors which an employee should keep in mind when going through the redundancy process and searching for a new role.
Kevin: Hello everyone. My name is Kevin Hunter, I'm the Marketing & Business Development Manager here at Doyle Clayton. Today I'm joined by Zahira Patel, who's an Associate in our Business Immigration team and also Liz Kynaston, who's a Senior Associate specialising in Business Immigration and Employment. Good afternoon both, how are you?
Zahira: Good afternoon, good thank you.
Liz: Good, thanks.
Kevin: So, today we're discussing employment and sponsorship implications for a sponsored employee who is at risk of redundancy. Sounds like an interesting topic, why do you feel it's important at this moment in time?
Zahira: Well, given the economic climate at the moment, we are noticing a lot of our clients having to make people redundant, or a lot of employees contacting us who are at risk of redundancy. As you can imagine, many of them have very similar questions that they're very concerned about, particularly if they're on a sponsored work visa. They're worried about things like how long they have before they need to file a new application, what they need to do, so, we thought it would be quite helpful to summarise the main things they need to think about if they find themselves in that situation.
What happens during the redundancy process?
Kevin: So, we'll start with the main process. What usually happens in a redundancy situation, what's the normal go to process?
Liz: So, as you said, I think it's helpful to get an idea of what would usually happen in a redundancy situation, before going into the detail about what individuals can do.
A company might decide that it needs to make redundancies to reduce staff numbers in certain situations; for example if there's a downturn in work, or perhaps it moves part of the business abroad, or maybe there's an internal restructure and they reallocate work to different roles. If a company decides to make redundancies, or is considering making redundancies, then it would normally take a number of steps.
First of all, the company will need to decide which roles are at risk of redundancy, and that normally means identifying a pool or group of employees that are at risk of redundancy. To take a simple example, if there's a team of eight sales managers, and the company knows they might have to make four of those people redundant, leaving only four roles, all eight sales managers would usually be pooled and put at risk of redundancy. Then as part of the redundancy process, all eight employees would usually be assessed against objective criteria and the employees with the highest scores would usually be offered the four roles that are left. It’s really important to bear in mind that sponsored workers should be assessed as part of this process in exactly the same way as non-sponsored workers, so they shouldn't be treated more or less favourably when being assessed.
The company should also follow a consultation process, which generally means they should meet with each employee that's at risk of redundancy individually, to explain the reasons for potential redundancies, to answer any questions that the individual might have, and to consider any proposals that they have for avoiding redundancy. It's really important to note that the redundancy should be a proposal only when this consultation process is going on; so, the employer shouldn't have reached any definite decisions, and should enter into the consultation process with an open mind. Also, just to mention that if an employer plans to make 20 or more employees in one establishment redundant within a ninety-day period, the employer also needs to carry out what’s called collective consultation. So, as well as consulting with the employees individually, they'll also need to consult with employee representatives or trade union representatives, about proposals.
Finally, the company should think about whether there are any suitable alternative roles for employees who are at risk of redundancy. Certain employees, for example those on maternity leave, are entitled to be offered suitable alternative roles in preference to other employees.
Now, if you're a sponsored worker who's at risk of redundancy and your employer offers you another role, you understandably may be keen to accept the role to protect your immigration position. It’s just worth bearing in mind that if your new role is in a different occupation code or job type to your current sponsored role, for example perhaps if you were a sales manager and you were offered a role as a project manager, then your employer would need to assign a new certificate of sponsorship to you and you would then need to make a new work visa application. You would also need to wait for that new application to be successful, and a new work visa granted, before you moved over to that new role.
On the other hand, if your new role is in the same occupation code as your current role, you don't need to apply for a new visa. Instead, your employer just needs to report to the Home Office any changes to your role; so, for example, a change to your job title, core duties, or perhaps if your work location changes, or your salary reduces, and they need to make that report within 10 working days of the change taking place. We're mentioning this for completeness, your employer will be in charge of that part of the process and will tell you if you need to apply for a new visa.
Kevin: That's obviously a lot of steps and a lot of information there, as an employee. If you're going through this process, am I right thinking that employers should be communicating all that to you, as in what their obligations are, and ensuring they're being met.
Liz: Yes, absolutely, the company should tell you that they're carrying out this process and they should be having meetings with you and explaining what's going on throughout the process.
As a sponsored worker, what are the next steps?
Kevin: Obviously, there's a lot of comprehensive steps and details, there to take. I imagine it’s a difficult period for any employee going through that. But for a sponsored worker, there must be that additional fear of where your status stands in terms of your right to work in the country. So, if a sponsored worker is made redundant, what are the next steps?
Liz: So, if a company decides to make any employee redundant, whether they’re sponsored or not, they should notify the employee in writing and also confirm their termination date. The employee may also be entitled to receive a statutory redundancy payment based on their age, salary and length of service at the company - and you can check online; the government website has got a calculator that you can use to see how much you'd be entitled to. Usually, an individual will only qualify for a statutory redundancy payment if they have been employed by the company for two years or more.
When deciding on an employee’s termination date in a redundancy situation, an employer’s got different options which they can take. So, let's assume that the employee has a four-week notice period:
Option one is that the employer can require the employee to work their full four-week notice period, so perhaps keep coming into the office, continue to perform their duties and do any handover throughout that four-week period.
Option two is that the employer can put the employee on garden leave for their notice period. So, the employee would remain employed throughout their four-week notice period but wouldn't be required to do any work; they could be at home and just need to be available for any questions that their employer might have during that period.
Option three is that the employer can terminate the employees’ employment immediately and make what’s called a payment in lieu of their notice period. So, the employee’s employment will terminate immediately, and they would receive a lump sum payment of four weeks’ salary to compensate them for their notice pay.
And sometimes, an employer will do a combination of those options, so for example, again if the person's got a four-week notice period, the employer might put them on garden leave for two weeks and then terminate their employment and make a payment in lieu of the remaining two weeks of their notice pay.
Now, obviously, for sponsored workers it’s often better if their employer goes for option one or option two, so, either makes them work their notice period or puts them on garden leave for their notice period, because that will delay their termination date and will give them a bit longer to apply for a new job, and then apply for a visa. Zahira is going to talk more about applying for a new visa later.
If a company makes a sponsored worker redundant, they need to report that to the UK Home Office and they need to make that report no more than 10 working days after the employee’s termination date. Once the company has submitted that report to the UK Home Office, the Home Office is on notice that the employee is no longer sponsored by the business and they should then issue the employee with a curtailment notice giving them 60 days, or until the expiry date of their visa if sooner, to apply for a new visa or leave the UK. And if the employee has got any dependant family members who are on their visa, their permission to stay will also be curtailed. And again, Zahira is going to talk a bit more about this later.
Just one extra point to mention is that a sponsored worker’s immigration permission is tied to their current sponsor. So that means they can't work for another employer, or work on a self-employed basis, or as a freelancer, until they’ve obtained their new visa that allows them to do that.
Practical steps a sponsored worker can take
Kevin: So obviously as a sponsored worker, there are a lot more considerations to take into account, especially in terms of their working status. So, with that in mind, what practical steps can a sponsored worker take if their role is that risk of redundancy?
Liz: So, if you're a sponsored worker and you're told you're at risk of redundancy, there are certain steps that you can take.
First of all, it's worth just thinking about whether there are any immigration documents on your work computer, or your work emails, that you might need in the future. For example, you might have saved a copy of your submitted visa application form or your certificate of sponsorship on your work emails and not have a copy on your personal computer. If that's the case, then you might want to obtain copies of those documents just in case you need them in the future. Before you do that, it's worth just checking with HR, but it is a good idea just to have those documents in case you need them.
Another thing you can do is, if you used your work e-mail address or your work mobile phone to set up your online Home Office account, which you might have done if you were using the new online-only application process and verified your identity using the Home Office’s app, then you need to update your contact details on that account as soon as possible, to make sure that you can continue to access your account after you leave the company.
And thirdly, and this is, I think, sometimes something that people don't think about when they're leaving, but often employers will ask sponsored workers to sign a letter agreeing to repay some of the visa application fees that were paid when they applied for their visa, if they leave the company within a certain time period. So, it’s always worth checking whether you signed one of those letters and, if so, whether you are required to repay any of your visa fees if you're made redundant. Often a company won't require you to repay the fees if you're made redundant, but if your letter isn't clear or it suggests that you may need to repay the fees, it's definitely worth just checking with HR as soon as possible to confirm the position.
What can a sponsored worker do to protect their immigration permission?
Kevin: So, with that in mind, I can just imagine the stress of the situation where the sponsored worker is potentially going through that process, what can a sponsored worker do to protect their immigration permission?
Liz: So, there are some things that you can do, particularly if you are offered a settlement agreement. It’s fairly usual for employers who are making employees redundant to offer them a settlement agreement before they leave. If an employee signs a settlement agreement, they will, among other things, be agreeing not to bring any employment law claims against their company, and in exchange, the company will usually give them a financial sum that's a bit more than any statutory redundancy payment that they're entitled to. The employee will need to take legal advice before they sign the settlement agreement, and often the employer will contribute a bit of money towards the legal fees that the employee will pay to get the advice.
If you're a sponsored worker who is offered a settlement agreement, you can ask your employer to agree to certain things in the settlement agreement to help protect your immigration position. If your employment lawyer who is advising on the settlement agreement also specialises in immigration law, or has colleagues who specialise in immigration law, then they should be able to help guide you through the process and suggest things that you might want to ask for.
Things that you could ask for in your settlement agreement include - as I mentioned before, your employer will need to report to the Home Office within 10 working days that you have left the company - you could perhaps ask your employer to agree that they will only submit that report on the tenth working day after you leave the business, and that should slightly delay the date that you get that curtailment notice that I mentioned before, giving you 60 days to leave the UK or apply for a new visa; so it'll give you slightly longer.
Your employer might tell you that they are going to terminate your employment immediately and will make a payment in lieu of your notice period. You could perhaps ask them if they're willing to instead let you work your notice period, whether that's actively working or going on garden leave, and that will obviously delay your termination date, which will give you a bit longer to find a new job and apply for a new visa. Similarly, if you have any accrued holiday that you haven't used, you could ask if the company is willing to let you take that at the end of your employment to again delay your termination date and give you a bit longer to apply for a new visa.
If you do ask for your termination date to be delayed in this way, it might be worth asking also for something to be put in the settlement agreement allowing you to bring forward your termination date. You might want to do that if, for example, you've been offered a new job and you want to start the new job as soon as possible. So, you can include something in the settlement agreement saying that you may ask for your termination date to be brought forward and that your employer won't unreasonably refuse that request.
In terms of asking your employer to delay your termination date in this way, say putting you on garden leave or allowing you to work your notice period, employers might not be willing to agree to this. Sometimes if they're doing a big redundancy exercise and making quite a few people redundant, they can be a bit unwilling to have some employees leaving on one date and sponsored workers leaving on a later date, but it's worth asking. Often employers are sympathetic to a sponsored worker’s situation; they do recognise that it can be really difficult if your visa is tied to your employment status. So, it is worth asking because, sometimes, they're willing to be a bit flexible and allow you to work a bit longer.
If you're entering into discussions about a settlement agreement, you could also ask your employer if they're willing to agree that you don't need to repay any of the immigration fees paid for your application. So that's sometimes worth asking for, if those are payable.
And the last thing is, you could ask your company to contribute to your legal fees for taking advice on your immigration situation. Alternatively, it's fairly common for employers to let you contact their immigration advisers for advice, so that's certainly something that may be offered to you, or you can ask the company if you can do that.
Kevin: One question I have in terms of experience, going through the process, I suspect there are legal obligations and actually whether the employer handles it in a nice way, or, not so nice way, that's down to the individual experience and it's just unfortunate if somebody's not really been managing it in the best way and, as you say, empathising with your situation. So, I presume there can be cases where those requests, you gave examples of, the employer can just say no and you can find yourself in the most difficult situation but, as long as the law is followed correctly, then is that just unfortunate?
Liz: Yes, unfortunately that is the case. Sponsored workers, unfortunately, in this situation aren't entitled to extra protections, even though, of course, being made redundant has an extra implication for them as their visa is linked to their employment status. And yes, I think it's very much a matter for the employer. Some employers can be flexible and can be willing, particularly if somebody is very valued and they've been with the company for a long time, often you will see that a company is prepared to delay their termination date just to give them a bit longer, or give them access to their immigration advisers to help them out, but there's no obligation for them to do that. So, it's a matter of goodwill for the company as to whether they're willing to do that.
What happens to my UK sponsored visa?
Kevin: Ok, so leading on from that, as a sponsored worker, Zahira, when you are made redundant or you’re going through this process, the immediate question that comes to mind is, what happens to my UK sponsored visa?
Zahira: It's a great question, one we get all the time, because that's the immediate thing on people's mind if they are a sponsored worker. So, Liz has covered some of the employment law issues, but for the purposes of just the sponsorship itself, the most important thing that someone in this situation needs to bear in mind is that their visa isn't cancelled immediately.
So, yes, it's true that a sponsored worker’s visa is very much tied to their employment, but that doesn't mean that the day that their employment ends is the same day that their visa ends. Instead, what happens, and Liz has mentioned it, but it is worth repeating just because it is important as people have more time than they think, is once your termination date is decided, your employer files the termination notice to the Home Office within 10 working days of your last day. So, if you have a three-month notice period and you're going to work all of those three months, then that notification won't go until10 working days after those three months.
But then when the Home Office receives that notification, they will send you a curtailment letter, which is your letter saying that your visa will be cancelled, but they'll give you 60 days, usually, in that curtailment letter, or less if your visa was going to expire before that 60 day period, whichever is shorter.
So, the most important thing to do is to wait for that curtailment letter and see exactly when your visa will terminate. But, as I said, it's usually a bit longer than people normally think. Now within that 60-day period, the most important thing that you need to know, if you find yourself in this situation, is you have until the end of that curtailment period to either file your new UK visa application online - make a valid application - or to leave the UK.
Now, you shouldn't leave the UK during this curtailment period, or even once you filed a new visa application, you shouldn't leave the UK because you might have problems re-entering, but you don't actually need to depart the country until the end period of your curtailment. So, that is potentially good news in that, normally people do think they have less time than that.
Another helpful thing is that during that curtailment period, I've mentioned you need to either file your new application or leave the UK, now the good thing is that requirement is just to actually file it online - you don't actually need to have the new visa before the end of your curtailment period. So, say your curtailment date is 30 May, even if you file an application, a valid one, online on the 28 May, you're still fine even if you don't get the visa decision back within the next two days, but you shouldn't leave the UK until you do get your new visa. So, I think that's probably the most important thing to bear in mind.
Employer sponsor licences
Kevin: So, obviously there's a number of different scenarios when going through that redundancy process, one of them being if you received an offer from another employer. So, what are the visa options in regards to that situation?
Zahira: So, that's a good question and they really depend on the role, and on the status of your new employer. So, if you are already a sponsored worker, an initial visa option to consider is whether your new employment offer could also fall within the sponsored worker category.
Now, there are various sponsored worker categories and probably the easiest one to file from within the UK would be a skilled worker application. So, if you already are a skilled worker, you should first look at whether your new employer can support a new skilled worker visa application. I won't really go too much into the other sponsored worker visas, so for example the global business mobility route, it's just because the requirements for that category are a bit more difficult to file for someone who's currently already in the UK and been made redundant.
But if you do find yourself with an offer from an employer who can potentially offer you a role that is suitable for skilled worker sponsorship, the first thing to really bear in mind is do they already have a sponsor licence?
That is going to be important because it will determine how long the process will take for you to get your new visa and be able to, firstly, file your new application in time, but also to get your new visa and start working. You have two things to think about, one is, as I said, is your role actually going to be sponsorable under the skilled worker route, so this will be things that you might already be familiar with, that you have to prove when you got your current visa is the potential new role skilled to A-level or above?; if it's just under the skilled worker route, is the salary requirement met? - all of those things, but also do check if they already have a sponsor licence because, as I said, that will determine the lead time.
Kevin: So, in relation to that, what's involved in an application for a new role with an existing sponsor licence holder, is it different to if they didn't have one?
Zahira: Yes, so it's different than that if they didn't have one, they would first need to apply for a sponsor licence. So, it's good if they already have a sponsor licence because it means you can start the visa process straight away, once you've accepted the job offer. The way that this works, and you might already be familiar with it if it's someone who, for example, was already on a sponsored work visa, some parts of it will be quite similar to the process that it may have followed in the past, but the first step is that the new employer, if they already have a sponsor licence, can assign what is called a certificate of sponsorship, so that's like your UK work permit that allows you to carry out that role in the UK once you get your visa.
As I said, as part of that assessment, the new sponsor will be checking whether or not that role that they're offering you is eligible for the requirements of that route. So, this is when they might check things like salary eligibility, they may ask you for things like passport copies, your visa history, how you previously satisfied the English language requirements; So, there'll probably be a lot of back and forth with either the employer or the employers’ immigration advisers. But, once everyone is satisfied that all of the requirements are met, the sponsor will assign you your certificate of sponsorship and, from there, you can go and file your application online. And as I said earlier, it's filing the application online that's important within your curtailment period, so that's really the important thing.
Now, the good news is for most people who are in the UK now on a skilled worker visa, if they have skilled worker BRP, which is a biometric residence permit, they can actually apply for the new skilled worker visa completely online and completely digitally without having to go to a biometric appointment centre, which is very useful because it cuts down the lead time for this entire process. The way that works is they can use the Home Office ID check app, which is a way for them to digitally verify their identity so they can take a digital biometric photo; the app should read the data from the existing BRP.
For individuals that can do that, the good news is that they can then file the rest of the application, including all of their supporting documents, entirely digitally, and that means the process and time for that application will start from the date that they upload everything digitally online. Unfortunately, there are problems with the app being able to read all BRPs, or if they are applying for a route which doesn't have that function at the moment (to use the Home Office app), then they'll need to attend a biometric appointment centre, which adds additional time to the process because they'll need to wait for the appointment; usually, it's about one or two weeks’ wait for the appointment from the date they place the application online. So, when they're thinking about time frames within that 60-day period, they still only need to file the application online within that 60-day period, but for them to actually then start work, the actual process and time for the application won't start until they attend their biometric appointment.
In terms of processing times, it's eight weeks for the standard process, but if the new employer wants them to start the role earlier, or if they themselves want to start the role earlier, just because they want to be working again, then what they can do is purchase priority service for an additional fee and that will expedite the process to five working days from the date, either on which they submitted their documents digitally or the date on which they attended the biometric centre, depending on which route they took.
Kevin: So, there are options available in terms of managing the time, managing the process?
Zahira: Yes, so for the skilled worker route, at the moment priority services are available.
There are rare instances in which they are paused, for example, during the pandemic they suspended all priority services, but at the moment priority services have good availability for the skilled worker route, so that is always an option and it's always worth checking if the new employer would potentially support priority service and pay for it.
Kevin: I imagine that it's always an option one would consider just for the peace of mind.
Zahira: Yeah, as I said, even though you don't actually need the decision, you just need to file the application online and before the end of the curtailment period. Obviously for most people that is still stressful, at least just to not have a decision and to be able to work in that time for a new employer or a new role, so for both a peace of mind and just the practicalities of being able to change roles, it's always worth at least checking if you can apply for priority service; it expedites it quite a lot. As I said, eight weeks standard, five working days priority, most people prefer the latter, it's a big, big drop in lead time.
Kevin: Yeah, I'm just trying to imagine myself in that situation. I think, just for peace of mind, going for the quickest option possible. So that's the implications for the employer that has a licence. What about an employer that doesn't have a licence?
Zahira: Yeah, good question. And this is why, I said that's one of the first things to check because really the main thing will be you'll have to do everything that I just said, but before you can do that, your new sponsor (your new employer) would need to actually apply for a sponsor licence, have it in place and have the certificate of sponsorship actually available to assign to you, before you can start that whole process that I've just described.
So, it adds on quite a significant process before the visa application process. Now, applying for a sponsor licence can be a lengthy process; so, from the date that an employer files a sponsor licence application, it could take eight to ten weeks for it to be processed and approved. It could be longer if the Home Office decides to make a pre-licence visit or a check, if there's questions or anything like that, so that might be quite a long way into that 60-day period. Now, that's from the date that an employer files their sponsor licence application online, but remember before they do that, that employer themselves will need to submit an application form and submit all of the supporting documents, and so really how long the whole process takes will just depend on how long it takes the employer to gather all of the documents that they need. And those can vary by how long the company has been operating, so there might be more documents to submit or additional things to think about if they’ve been trading for less than 18 months, or if they're in specific industries, as well as general documents that usually have to be submitted. They might need to gather things like bank statements, HMRC documents, VAT documents, and it just varies so much in terms of how long a company will take to do that, because some companies might need to check into their accountants and wait for documents from them. So, it's always worth checking in with them if you are offered a role with a new employer, just how long they anticipate it taking them to gather the necessary documents that they need before they even file an application. As I said, when they then file the application, the standard processing time is eight to 10 weeks.
Now, again, a priority service may be available to expedite that but, unlike the visa application priority fee, for the sponsor licence, the Home Office actually restricts the number of priority slots that are available every day, so it’s actually quite hard, especially at the moment, to get one of those slots and your employer will need to keep making a request to even be able to make the payment to do that. So, it's hit and miss, your sponsor may get priority service and be able to have the sponsor licence in place earlier, but if not that, you might have to wait a full eight to ten weeks before they can even get the sponsor licence in place.
Now, once they get a sponsor licence in place, then they can proceed with all of the same steps that we've just talked about. But one thing they should just check is that, as part of that sponsor licence approval, the sponsor was actually granted a certificate of sponsorship allocation, because if for some reason the sponsor licence was approved but they didn't receive one of those, then the sponsor will need to first apply for that. So, there are a few different moving parts and it's just always good to keep checking in with the employer, and to see where they are and how long they expect all of this to take.
Kevin: So, as the employee, lots of factors to consider, especially when looking at the next steps, and supposing when selecting an employer and, it feels like to me that, maybe in some situations that the priority is the status of the employer rather than what job is maybe the better one.
Zahira: It really depends on the person. I definitely have clients who have been offered a role that is their dream role, the perfect role, and in that situation, they want to wait for the potential employer to get a sponsor licence, even though if they went with another employer who already has a sponsor licence, obviously they could submit that application much more quickly. But, if your main priority is protecting your immigration status and filing the application as soon as possible, or even just working as soon as possible in the new role, then whether or not an employer already has a sponsor licence,is going to be probably one of the most important considerations.
Kevin: So, once they work their way through all that, for some permanent residency might be an option I believe is that still, can that still apply after the at the end of the original five years?
Zahira: Yes, that's correct, just to be clear, the five-year period that you've mentioned for permanent residence is for the skilled worker route. The other route that I've been talking about, the global business mobility senior specialist worker route, doesn't allow for settlement after five years. But, under the skilled worker route, you can potentially apply for settlement in the UK after five continuous years of residence in the UK as a skilled worker, provided that you meet all of the requirements at the time. The good news is that under the skilled worker route, a break in your employment is absolutely fine as long as your skilled worker permission remains valid throughout the entire five years. And the way that you keep your skilled worker permission valid is by filing your new visa application in time, within the time frames that I've mentioned, so that's really good news.
Now obviously when you come to the end of your five year period, you must also make sure you meet all of the other usual skilled worker requirements at the time you file the application. So, for example, you'll need to meet the absence threshold of no more than 180 days of absence from the UK in any rolling 12 month period, you need to show that your role is still needed in the UK for the foreseeable future, you'll need to make sure you meet minimum skill and salary thresholds, things like that. But as long as you meet the requirements and your skilled worker permission has remained valid throughout the five years, the break in employment won't impact you being able to apply for settlement, so that's good news.
Kevin: I imagine that comes as some relief for many, because the long-term implications as well as the short term must be a concern for them. So, looking at the immediate impact, when does it become possible to start working for a new employer?
Zahira: That's a really good question. A skilled worker, or any sponsored worker really, is tied to their employer. Now, although you can remain in the UK when you file the application, you can't start working for the new employer until you've received your new visa approval, and the new employer has carried out what's called a right to work check. Employers are required to carry out right to work checks for all new hires in the UK. Now, the way that these right to work checks are carried out, differ slightly depending on whether you submitted via that online only process, that I talked to you about earlier - the one using the Home Office ID check app - or whether you applied via the biometric appointment route.
Now, for someone who applied via the online only route, the good news is as soon as you get your Home Office approval e-mail - so this is when your new visa application has been approved and you'll receive an e-mail confirming that - what you should be able to do is you should be able to log into your online account, which you will have had to set up to submit your online application, and you'll be able to generate what's called a share code; it's a code that you can share with your new employer and that will then allow the new employer to carry out the new right to work check. So, as long as that is done correctly, the new employer can verify your new right to work check on the basis of your new visa. As soon as that check is done, you can start your new role.
For individuals who applied via the biometric appointment route, unfortunately, they won't have an online account to generate that share code. So, what they'll need to do is, they'll receive first, the Home Office approval email, but then secondary to that, they'll also receive a new biometric residence permit or BRP. So, now, the Home Office are fading them out in 2025, but in the immediate term they're still going to be issued for some individuals. And so for individuals who applied via the biometric appointment route, it's only when they get their new BRP card that they can generate that share code that allows an employer to carry out their right to work check. So again, in that instance, once they've got the new BRP, once they do the right to work check, then they can start the new role with their new employer.
What happens if you can’t find a role suitable for sponsorship?
Kevin: So, looking at worst case scenario potentially, what happens if they can't find another job suitable for sponsorship?
Zahira: That's a really good question because as I said, within that curtailment period, what you need to do is either file a new valid application from within the UK or you need to leave the UK. So, to avoid the worst possible scenario, if you are having to leave the UK by your curtailment date, if you can't find a role that's eligible for sponsorship in the UK, then instead what we can do is consider whether you can apply for any alternative personal immigration categories or non-sponsored routes. So, these will be things like whether you can apply for youth mobility scheme visas, ancestry visas, global talent visas, a relationship-based visa - if you, for example, are married or in a relationship to someone who is British - for example.
Now, the slightly complicated thing is for each of these routes, they will have their own rules about whether you can switch into them, and about whether you can maintain the time that you've already spent in the UK for future purposes of settlement. So, it might be that you can switch to another route but you lose the time you’ve already accrued in the UK for the purposes of that five years to settlement, that I mentioned before, if you are currently here as a skilled worker, in which case what you need to consider is, is it more important that you can stay in the UK and switch to another route, and start accruing time in that route, or if the settlement was really the most important thing for you. Now, there are a lot of potential non-sponsored routes, so I can't cover all of them right now, but my colleague Adam, who is a Senior Associate at Doyle Clayton, he specialises in personal immigration routes so he can take you through a brief overview of the types of routes that individuals can consider if they can't find another role that is suitable for sponsorship.
Kevin: There is a lot of information that we've covered there, lots of possible route scenarios and different options available for the individual, and it sounds like nothing can ever be one-size-fits-all; it's dependent on the individual circumstances, situation, whether it be in their own personal living situation in terms of what they want to achieve and what's the best objectives for them and their family.
It strikes me that an individual potentially may not know what is available to them, so the thing that comes to my mind, the immediate call to action there, is seek advice from your adviser to see what your options are.
Zahira: Yeah, absolutely. And sometimes your current sponsor, who's considering making you redundant, or even your new potential sponsor, may actually have either an immigration or employment lawyer, or both, who they actually contract out to assist you. So, it's always worth asking in the first instance whether either your current employer, or your new employer, can still take some of that legal advice for you. But I would say, yeah, it's worth taking that advice if possible.
Liz: Absolutely, and I think it's really important just to help you plan for the future if nothing else, just as Zahira said, it might be that there's another visa category that you can move into that's available to you and might work for your personal situation. And so, it's important to know all of the options that are available to you and also to understand, that once they leave one job, they can't work on a self-employed basis, they can't set up their own business, and that, actually, if they do - say they do it for six months and then move to another employer - that can actually have implications for their future Settlement application. So, I think it's really important to take legal advice, just to understand all of your options and, from the employment law perspective, obviously to understand whether your employer has followed a fair process, and any avenues that might be open to you from that perspective.
Kevin: Right, so as we sum up here, in addition to seeking legal advice and making sure you know all the options available to you; we’ll go for one from each, what are the key takeaways from this, from what we discussed, what were the key messages for any sponsored worker who is thinking they may be facing this unfortunate situation, what do you feel like are the key takeaways from what we've discussed today?
Liz: So, I think from the employment side of things, if you're put at risk of redundancy, it's important to start conversations with HR as soon as possible about your visa situation, to understand whether , if you are made redundant, they're going to ask you to work your notice period or will terminate your employment immediately, because that can help you plan and understand your timeframes, and I think also to see if they might be able to refer you to immigration advisers. But I think it's also just being aware that if you’re offered a settlement agreement, in particular, you can try and negotiate to make your position just a bit safer and to protect yourself.
Zahira: And from the sponsorship perspective, I think the most important thing to remember is going to be that 60-day curtailment period that you have. So, the most important thing is to know when your sponsor is going to, and has made the report to the Home Office, notifying them of the last day of your employment, knowing what email address and address was used as part of that notification, because that would be the email address the Home Office use to contact you - most often they contact you by email, sometimes by post - and then looking at that curtailment letter and actually looking at the date, and that will be the date - the most important thing is - that you either need to file a valid new application by, or by which you need to leave the UK. So, that gives you the time frame in which you need to plan all of these other steps that I've just mentioned.
Kevin: Well, thank you very much for your time both. As ever, if anybody listening feels that they need support in relation to what we discussed today, contact our business immigration team and you can find details on our website, www.doyleclayton.co.uk. But for now, thank you very much. Appreciate your time.
Part Two: Alternative routes and immigration options for individuals
In part two Adam Cotterill explores the implications from a personal immigration perspective when a sponsored worker is made redundant. This part of the podcast discusses recommended steps the employee can take, including sponsorship with a new employer; alternative (sponsored and non-sponsored) visa routes, and practical tips on how to do this in a way which best protects the individual’s UK immigration status.
Part Two: Alternative routes and immigration options for individuals. Click here for the transcript
Adam Cotterill explores the implications from a personal immigration perspective when a sponsored worker is made redundant. This part of the podcast discusses recommended steps the employee can take, including sponsorship with a new employer; alternative (sponsored and non-sponsored) visa routes, and practical tips on how to do this in a way which best protects the individual’s UK immigration status.
Kevin: Hello, everyone. My name is Kevin Hunter, and I am the Marketing and Business development manager here at Doyle Clayton. Today, I'm joined by Adam Cotterill, a senior associate in our personal immigration team. How are you, Adam? Many thanks for joining me today.
Adam: I’m great, thank you Kevin.
Kevin: So, we're going to be discussing the implications of redundancy on employees who are sponsored workers. I previously sat down with your colleagues Liz Kynaston and Zahira Patel, where we spoke about the same topic, but looking at it from an employment and business immigration perspective. Today we're going to look at it from a personal immigration viewpoint. The first key point in my mind is the 60- day curtailment period, can you briefly provide an overview of what that is?
Adam: When a sponsored worker’s employment is terminated, there's a 60-day curtailment period, where an immigration application must be made by the individual within this period, if they wish to remain in the UK and avoid becoming an overstayer; that's the general term for somebody who is in breach of UK immigration law. That's important because being in breach of UK immigration law is a criminal matter for which a person actually may be prosecuted. Although we do rarely see this happening in practice, it's an important consideration.
The alternative option is for the individual to leave the UK - again, that will have to be within the 60-day period - and then apply for a new visa from abroad, known as entry clearance.
Kevin: So, when chatting with Zahira, she mentioned that the individual should remain in the UK when submitting a visa application, but is this just the case for when applying for a like- for- like Visa, i.e., a sponsored worker visa?
Adam: Yes, that's correct. So, generally speaking, where somebody's sponsored worker visa is coming to an end, so in this case, a person is made redundant, if they can find new employment with a new sponsor, they can make an application from within the UK to essentially continue on a sponsored worker visa. However, that might be different if they're entering into a different visa category, and that's obviously important for what we're discussing today because we're looking at the consequences for people who are made redundant and there isn't the offer of alternative sponsorship. In that situation, you'll need to check whether the visa category permits a person to make an application within the UK, and stay in the UK, without having to leave at all. Or whether they're required under the immigration rules to leave to make an application for entry clearance.
Kevin: OK, so the first decision to make is whether to find an alternative employer, who can offer the sponsorship, to apply for an alternative visa, or leave the UK.
Adam: Yes, that's correct. For many, obtaining your sponsorship is probably going to be the obvious solution for somebody who's already here working with that visa. However, those who are made redundant are probably going to have relatively little time to seek out, as well as go through the interview and onboarding process for a new job.
Also, take into consideration the fact that there are a large number of redundancies at the moment and this can be sector specific. Those who are looking for a new job will have to contend with an unfavourable job market and so the sponsorship will be even more difficult to find and secure
Kevin: So, for someone who finds themselves in that position where they want to seek alternative employment as a sponsored worker, but are struggling to find a new role, as you said, due to the difficult job climate at the moment, I presume the next best option is to source an alternative visa?
Adam: Yes, so without the prospect of finding a new employer willing to sponsor the individual, in the short period of time that they'll have to remain in the UK, they may have to look at alternative visa categories as a way to either stay in the UK or to return once they've been required to leave.
Kevin: The next question then is an obvious one: what are the available alternative visa categories and where may they be found?
Adam: I'm going to start with your last question, where can the visa categories be found? They're found in the black and white of the law in the UK immigration rules, which are available to everybody online, but these should always be read alongside the more detailed guidance. Visa categories are summarised on the Home Office website, known as gov.uk, and there's a tool on that website which allows somebody to identify their visa options after answering a number of questions. But there's a health warning that has to apply to that because often the Home Office website will oversimplify the rules , and so somebody in a more complicated situation can find themselves doing things which aren't necessarily correct. And that's why we always recommend that when somebody has used the online tool to check what their options are, that they then get that checked with an expert and/or they look at that alongside the more detailed immigration rules and guidance.
It's probably also worth saying that not all of the information is always up to date on the Home Office website. For example, details about newly created immigration categories or upcoming changes won't be published on the website. But we, for example, as immigration lawyers, will have known about these categories for a while, and it would be important to have that knowledge so that we can advise clients who may be in a position to take advantage of the new categories.
Regarding the alternative visas, there are many categories and types, the most relevant in the circumstances of those individuals who we're thinking about today, are those immigration categories which are based on a person's economic activity or prospective economic activity in the UK.
I'll start by talking about the skilled worker category. So, this is a category available to somebody who’s already in the UK as a skilled worker, where they found new sponsorship, of course this is something which Zahira and Elisabeth covered with you in that discussion in the earlier podcast, so I won't go into any more detail talking about this category.
The second category I'd like to talk about is the scale up visa. This visa will be applicable to somebody where they have a confirmed job offer to work for an approved scale up business; now that's a business recognised by the Home Office on the basis that the business has experienced significant growth in turnover or in employee headcount. Similarly to the skilled worker category, it will require a certificate of sponsorship from the sponsor, i.e., the business, and so it’s a category that won’t probably be relevant to an individual who doesn’t already have a job offer, like those people who we’re thinking about today.
Next is the innovator founder route, which is going to be more relevant to the people we're talking about today. This is a route that was launched, or will be launching, should I say, on the 13 April 2023. It replaces the startup and innovator routes which will close on the same date. So, at the time of recording, we're only a few days away from the day on which this new route comes into force, and so I won't go into very much detail, other than to say that the innovative founder route is almost identical to the old innovator route, save for one main difference, and that's that an applicant will not be required to show a minimum cash investment. Now, the reason for the change, and why the visa categories have been relabelled, is that the old categories weren’t fit for purpose and this new innovator founder route is intended to offer greater access and flexibility for those with a genuine proposal for an innovative business, and sufficient funds to deliver it.
Some key points about the category, the first is that the individual who wants to enter into this category must first obtain an endorsement, and that will be from an endorsing body which backs their business idea. Who are the endorsing bodies? Well, they are bodies which consist of experts who've been approved by the Home Office and who sit in organisations. There are a number of them, and which body you apply to will depend on your particular circumstances.
The second key point is the £50,000 minimum funds requirement. As mentioned earlier, that was a requirement under the old innovator route, but it's not applicable here.
And the third, and most important, point about this route, and is different from the two previous categories, is that visa holders can undertake secondary employment whilst also running these businesses
The fourth category I'll talk about is the global talent category. This is probably going to be the most significant visa category for those who are highly skilled in the UK, and it's a category open to individuals who are considered as leaders, or potential leaders, previously known as exceptionally talented or exceptionally promising individuals, in their particular field. For immigration purposes, the Home Office have subcategorised these into areas of academia and research, arts and culture, and digital technology, each of which have their own independent, but Home Office appointed, endorsing bodies, which comprise a panel of experts in their relevant field who assess applications based on the endorsing bodies’ own published criteria. So, there's an element of subjectivity when somebody makes an application under this route, and that's why it can make it more difficult and certainly make the application far more involved in terms of its preparation. It's also important to note for this category that the application process is in two stages. The first is that the application is made to the endorsing body. and then if the panel are in agreement that the application has demonstrated their talent by meeting their relevant criteria, the individual may then make the visa application, which is the second stage in the two-stage process.
The reason why this visa category is particularly relevant in the current climate is that we're seeing large numbers of redundancies in the IT and tech sector, and so many of those are naturally drawn to the global talent visa category as it has an endorsing body, which was previously known as Technation, but it's also undergoing change and will be relabelled. Again, it’s about to be launched and the Home Office haven't yet released details, but the principle is the same; they'll apply to an endorsing body and if they're able to meet the criteria, they'll be granted a visa on the basis that they are considered leaders, or potential leaders, in their field.
In addition to the economic visa categories, they're also non-economic visa categories, which may be relevant; so, I'll just talk through some of those now. The first, maybe the most obvious, is the family route; these are applications made under the immigration rules on the basis that somebody has a partner in the UK who is British or settled, or they are the parent of a British child or a child who's been here for a number of years, such that they would qualify on this basis as their parent.
The second category I want to talk about is the high potential individual visa category. This is for individuals who have received a degree from a top-rated university, as recognised by the Home Office, and the Home Office publish a list of those universities on their website.
The third I want to mention are visa applications or categories based on a person's nationality. These can include the ancestry routes, the BNO routes, which stands for British National Overseas, Youth Mobility worker, and applications can also be made under the EUSS, which is short for the European Union Settlement Scheme. I've just listed off those visa categories because for many people they won't be relevant at all, and they depend on a person's specific circumstances. For those European nationals who haven't already applied under the EUSS, but were resident in the UK before the 31 December 2020, they can make a late application, so that's one to consider if they are European.
It's also worth noting that the skilled worker route is part of a wider category called the Points Based System. There may be some circumstances where the skilled worker is the main applicant in that particular category, and their partner also has immigration status under the skilled worker category, as a skilled worker dependant. It may be possible where the main applicant is becoming redundant, for them to switch and become a dependant themselves, if their partner is also in employment in the UK and can sponsor them.
What these categories serve to illustrate is there are very many different immigration categories, far too many to mention here, and they're all circumstance specific. The main take away is that individuals need to fully understand their options.
For example, there may be more complicated circumstances where a person may need to consider applying for a short-term visa, in order to provide a stopgap until they become eligible for a longer term visa. That's a simple example, but it demonstrates how you need to take a person's individual circumstances to fully appreciate what the options are; whether they should remain in the UK or leave.
Kevin: So potentially there are a lot of visa options available. In your view, how quickly should a person look into alternative options?
Adam: For someone who decides they want to remain in the UK and make an application for permission to stay before the end of the 60-day curtailment period, they'll need to start the process of looking into their immigration options as soon as possible. It is recommended that alternatives to sponsorship be explored early on, and alongside any efforts to secure new sponsorship. Each visa category has its own requirements and so it’ll be entirely the responsibility of the individual working alongside an immigration expert or lawyer, if they have one, to demonstrate this and to prepare the necessary evidence within the correct time scales.
This will likely be a very different experience for those who had previously been sponsored by their employer on a work visa, who may have done much of the planning and leg work for the visa. So, time to understand the process and prepare a visa application will be key if an application is to be made from within the UK.
Kevin: So, time is obviously a key factor, but what are the important things to consider when looking into alternative categories?
Adam: So, the starting point is the individual circumstances and their overall objectives, as this is going to determine the visas which are relevant and those visas which are not. It's the job of the personal immigration lawyer to familiarise themselves with the person's background and objectives, and assess the requirements of the various visa categories against these to see if they are visa-fit. If a person is doing this themselves, they'll need to quickly familiarise themselves with the ins and the outs of the visa categories. This exercise can result in more than one option, or none at all.
In other cases, it might not be clear cut. So, for example, a visa category may not be an option now, but may be later on, or there might be a particularly high risk of it being denied, meaning that it's a borderline case. Where there's more than one option, or where someone may be still weighing up to make a fresh visa application, keeping sight of the overall objectives and personal priorities will help. One visa category may be preferential in one regard, but less attractive in another. For example, one visa may offer flexibility and be more straightforward in terms of meeting the requirements, but may not offer a clear pathway to settlement, otherwise known as permanent residence, which is often the most important thing for somebody who is here in the UK on a temporary work visa.
And, so, for this reason, it's going to be important to understand, not only the requirements of each visa category, but how the visa category fits into the wider context by looking at wider considerations. Pertinent questions may be, what are the conditions which are attached to that visa, which means what can they do on the visa and what can't they do? Does the visa category offer a route to settlement? Does it permit dependants to be included in the visa category, for how long, and on the same terms? And can the application be made from within the UK or from abroad?
Kevin: It sounds like there are a lot of factors to consider there, at various levels of complexity, is it therefore necessary to instruct an immigration expert?
Adam: That's a really good question and I think it's going to be a different answer for different people. So, if a person's visa process has previously been handled, to a larger or lesser extent, by their employer or their sponsors’ lawyers, and it’s the first time that they’re going to be thinking about or engaging with the UK immigration system, it’s going to be quite daunting for them; so, instructing an immigration expert may be something could benefit. Experts as well are going to probably help speed up the process, as they're going to be more acquainted with the immigration rules, and then be able to make a quick assessment of which category a person may fit into if a person is looking for alternative routes, if they can't find an alternative sponsor for them to remain in the skilled worker category.
Engaging with an immigration expert early on can avoid the stressful and costly consequences of getting it wrong, something which can be much harder to rectify if a mistake is made or discovered later on. Also, it's worth bearing in mind that visa applications aren't just a case of filling out a form, evidence is also required, usually in ways specified by the rules. A seemingly small mistake in the process, on an application form or in the provision of incorrect evidence, may result in a person's immigration status being put in jeopardy. One example is by ticking the wrong box on an application form may mean that they failed to meet the immigration rules and their application could be rejected, and they could ultimately be made an overstayer, as a result. As well as checking a person's eligibility, an immigration lawyer can offer technical expertise in the preparation and processing of an application, to prevent things like this going wrong.
Another important benefit of having an expert to advise is that they can look at the long-term immigration strategy, which an individual on their own is unlikely to do, and that could colour what approach they take and what visa category they apply for.
Visa applications are submitted day in, day out, without the support of lawyers, but in a situation where the stakes are already high, obtaining advice early on to understand their immigration position and visa options is likely to be invaluable.
Kevin: So, to sum up, what are the key points you feel listeners should take away from this discussion?
Adam: The key to understanding and successfully engaging with the UK immigration system is all in the planning. And in a time-sensitive situation, those impacted by a redundancy should act quickly to understand and protect their position, and that includes seeking legal advice and assistance when necessary.
Kevin: Amazing, well, thank you Adam. This has been a very interesting and informative discussion. I really appreciate the time today. And as always, if you would like any advice regarding anything we've discussed during the session, please contact our personal immigration team, details of which you can find on our website, www.doyleclayton.co.uk.
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