Tier 2 Immigration (Skilled Worker and Intra-company Transfers) - Covid-19 FAQs
FAQs arising from the Home Office’s published Covid-19 Guidance
If you have any questions about Worker or Temporary Worker business immigration please get in touch with Anita de Atouguia (Partner & Head of Immigration) or your usual Doyle Clayton contact.
Skilled Worker & Intra-Company Transfer applicants (previously Tier 2 applicants (General & Intra-Company Transfer))
My Tier 2 / Sponsored Worker permission is due to expire. Can I stay in the UK?
- If you are in the UK with leave that expires by 30 June 2020 and intend to leave the UK but have not been able to do so due to Covid-19, you can request additional time to stay (‘exceptional insurance.’). To request exceptional assurance, email email@example.com with: your full name, date of birth, nationality, Home Office reference number, type of visa, expiry date of the visa, reason for request, and evidence of your flight or other evidence showing the reason you cannot leave the UK. The subject header of your email should “Request for an assurance” and you should attach evidence to show why you cannot leave the UK, for example because you cannot find a flight before your visa expires, or evidence of a positive coronavirus test result, etc. While your request is pending, you will continue on the conditions of your current or most recently expired visa. It is important to note that if you are granted ‘exceptional assurance’ it will act as a short-term protection against adverse action or consequences after your leave has expired. It is not ‘leave’ to remain in the UK. If your current or most recently expired visa allowed you to work, study, or rent accommodation, you can continue to do so during the period of exceptional assurance.
Applying for exceptional assurance - You should only apply for exceptional assurance if you plan to leave the UK as soon as you are able to i.e. you don’t intend to stay on a long-term basis. If you are intending to remain in the UK, you should instead apply to extend your leave or to switch to a different immigration route (if this is allowed) before your current permission expires in the normal way. You can make an application to remain in the UK if you hold permission in a route that would not normally allow you to do so if your current permission or visa expires before 1 July. You can also apply for permission to remain in the UK if you have ‘exceptional assurance’ but you must submit the application before the expiry of your exceptional assurance.
If I submit my application before my current permission expires, am I allowed to keep working?
- If you apply to extend your stay, your permission is automatically extended pending the outcome of your application. The terms of your permission will remain the same until your new application is decided. Similarly, if you have requested ‘exceptional assurance’, while this is pending you will continue on the conditions of your current or most recently expired visa. So, if you are currently allowed to work then you may continue to do so.
I am currently in the UK on a Tier 5 (Youth Mobility Scheme) visa. Can I switch to the Skilled Worker route?
- The Skilled Worker route replaced the Tier 2 (General) route on 1 December 2021. You can now switch to the Skilled Worker route from within the UK if you have a Tier 5 (Youth Mobility Scheme) visa. Therefore, there is no need to rely on a Covid-19 concession to submit this application.
My UK visa has been granted and I have been issued with a 90-day entry clearance visa. However, I haven’t been able to travel to the UK because of the COVID-19 pandemic and so it has now expired. What should I do?
- Visa vignettes are usually issued for a 30-day period to facilitate travel to the UK but are being issued for 90 days during the pandemic. If your 90-day vignette has expired, you will need to apply for a replacement by completing the online form
When I arrive in the UK, will I have to self-quarantine for 10 days?
- Travel to England. Since 17 May 2021, residents and visitors arriving in England from abroad have been subject to a ‘traffic light system’ of differing rules, depending on where they have been in the 10 days before they arrive.
You need to check if the countries you have been in in the 10 days prior to arrival are on the red, amber or green list. (See list here)
- Red list countries. Only British and Irish nationals and those with residence rights in the UK can enter England if they have been in a country on the red list in the previous 10 days. Long term visa holders (such as Skilled Worker or Intra-company Transfer visa holders) have residence rights in the UK so can enter, but must:
(1) Take a Covid-19 test 3 days before travel,
(2) Book a quarantine hotel package (including 2 COVID-19 tests) 14 days before arrival
(3) Complete a passenger locator form 48 hours prior to arrival in the UK.
The managed quarantine hotel package includes quarantine in a government approved hotel, quarantine transport, and COVID-19 tests for day 2 and 8 of quarantine. Travellers from a red list cannot end quarantine early using the ‘Test to Release’ scheme.
- Amber list countries. If you have been in an amber country in the 10 days prior to travel, you must take a COVID-19 test in the 3 days prior to travel, book and pay for day 2 and 8 COVID-19 travel tests. Upon arrival in the UK, you will also need to quarantine for 10 days but this does not need to be in a government mandated hotel. You may be able to end quarantine early if you pay for another private Covid-19 test through the Test to Release.
- Green list countries. If you have only been in green list countries in the 10 days prior to travel, you must take a COVID-19 test in the 3 days prior to travel, book and pay for a day 2 COVID-19 test and complete your passenger locator form 48 hours prior to travel. There is no need to quarantine unless your day 2 COVID-19 test result is negative or if NHS Test & Trace inform you that you travelled to England with someone who has tested positive for COVID-19.
There are different rules in place for Scotland and Northern Ireland.
I have been stuck overseas for the last few months and am worried that this will stop me from getting Indefinite Leave to Remain in the UK. What should I do?
- Individuals with Tier 2 (General) or Skilled Worker permission can apply for Indefinite Leave to Remain (ILR) (also known as Settlement status or Permanent Residence) after living in the UK for 5 years, provided they meet certain criteria. One requirement is that they must have spent no more than 180 days in any rolling 12-month period outside the UK.
If someone can’t return to the UK because of the COVID-19 pandemic, they might exceed this 180-day limit. Under the new UK immigration rules, absences caused by “travel disruption due to… pandemic” will not count towards the 180-day maximum. There is also updated guidance for applicants to the EU Settlement Scheme, including those who have pre-settled status but may not qualify for settled status due to Coronavirus. You can read further details on this here.
Worker and Temporary Worker (previously Tier 2) Sponsors
An employee has applied to extend her existing permission to stay but has not heard back yet. Can she keep working?
- If your employee submitted an Extension application from within the UK before the expiry of her current permission, her existing leave will be automatically extended pending the outcome of her Extension application. So, she will be able to continue working for you on the same terms as before until she receives the outcome of her new application. If her Extension application is unsuccessful, she won’t have the right to work for you in the UK unless she can obtain UK leave to remain under a different immigration route. You may therefore need to terminate her employment (we suggest that you take legal advice first and our employment team can help with this).
We have assigned a Skilled Worker or Intra-company Transfer Certificate of Sponsorship to someone who is located abroad. They have submitted their application, but the visa still hasn’t been granted because the biometrics centres have been closed due to COVID-19. The UK planned start date has now passed. What should we do?
- Usually, a sponsored worker’s start date cannot be delayed by more than 28 days once they have been granted entry clearance or permission to stay. If a sponsor knows that an individual’s UK start date will be delayed because of the pandemic (for example, if their visa hasn’t been processed yet because of application centre closures or because they can’t travel to the UK) then it is recommended they report this to the Home Office within 10 working days of the delay. In the online Sponsor Management System (SMS) report, the sponsor could state that the worker’s start date has been delayed because of the disruption caused by the COVID-19 pandemic. They could also report the new start date, when known.
If the delay occurs after the visa/permission to stay has been granted you must use the ‘delayed start date’ SMS migrant activity report option on the sponsor licence to notify the Home Office about the new start date. If you want to make the report about the delayed start date before the visa/permission to stay is granted, then remember to add this sponsor note before the CoS expires!
We have assigned a Certificate of Sponsorship (CoS) to someone located abroad but they haven't submitted their visa application yet and the Certificate of Sponsorship has now expired. What should we do?
- A Skilled Worker or Intra-company Transfer visa will be valid for 3 months after it has been assigned to the migrant. Usually, if the individual doesn’t submit their visa application within this 3-month period, their CoS will expire, and their application will be rejected.
If you have assigned a CoS to an individual, you should check its expiry date (this will be stated on the CoS). If it expires soon, you should make sure the individual submits their visa application before the CoS expiry date. Once the application has been submitted, the CoS will continue to be valid after its expiry date (even if it takes months for the visa to be granted).
If you have assigned a CoS to someone and it has already expired, they may be able to use the expired CoS for their visa application. The Home Office has confirmed that where the CoS has already expired:
- The employee can still apply for a visa - They won’t automatically reject an application because the individual’s UK work start date has changed and
- They may accept a CoS if it has become invalid because the individual was unable to travel as a result of coronavirus. Such applications will be dealt with on a case-by-case basis.
Are my sponsor duties affected by COVID-19?
- Generally, no. The Home Office has temporarily relaxed the rules around Right to Work checks slightly (until 20 June 2021) but you should still be doing everything you can to comply with your sponsor duties (including reporting changes in reduction in salary and job titles and an individual’s delayed start date as a result of the disruption caused by the COVID-19 pandemic). However, the Home Office has agreed to relax certain reporting requirements as a result of the COVID-19 pandemic and these are listed below.
-Homeworking. Many employees are temporarily working from home due to COVID-19. Usually, if a sponsored worker’s place of work changes, their employer must report this to the Home Office. However, the Home Office has confirmed that sponsors do not need to make a change of job location report if a sponsored worker is temporarily working from home due to the COVID-19 pandemic. This would include if an individual has temporarily returned to their home country and is working from home there. You should make a note of your assessment that an individual’s homeworking is COVID-19-related and save this on their HR file in the UK for audit purposes.
If the migrant is working from home (or from a location other than the one reported on their CoS) for a reason unrelated to the pandemic, the sponsor must still report this as a change of circumstances in the usual way.
-Absences from work for more than 10 working days. The Home Office has confirmed that sponsors are not required to report absences related to COVID-19, provided the absence has been authorised by the sponsor (such as sickness absence, self-isolation or inability to travel to due to flight or travel restrictions). They should make a note that Covid-19 was the reason for the employee’s absence and save it securely on the individual’s HR file in the UK for audit purposes. If a sponsored worker is absent from work without permission for more than 10 working days for a non-COVID-19-related reason, sponsors must report this in the usual way.
-Unpaid leave for 4 weeks or more During the COVID-19 pandemic. Sponsors do not need to withdraw sponsorship if an employee is absent from work without pay for 4 weeks or more because of personal reasons due to coronavirus. The Home Office is keeping this relaxation of the usual rules under review. Again, sponsors should keep a note on the individual’s HR file in the UK confirming that their absence was because of coronavirus. If the individual is absent from work without pay for 4 weeks or more in any calendar year and this is for a reason unconnected with coronavirus, the sponsor must withdraw sponsorship (unless an exemption applies, for example they are on statutory maternity or paternity leave or sick leave).
We have put a sponsored migrant on furlough. Is this allowed?
- Yes, foreign nationals are eligible to be furloughed under the Government scheme. Tier 2 (General)/Skilled Worker migrants aren’t normally allowed to receive “public funds” but the government has confirmed that furlough payments made through the Coronavirus Job Retention Scheme (CJRS) don’t count as public funds.
Can we reduce a sponsored worker’s pay?
- If you have a sponsored worker on the UK company’s PAYE payroll, you may be able to temporarily reduce their salary to the lower of (1) 80% of their usual salary or (2) £2,500 per month provided that the salary reduction is part of a company-wide policy to avoid redundancies where all workers are treated the same. Note that the amount an employer can claim for is reducing.
The reduction must be temporary - the individual’s salary would need to be increased to the level stated in their CoS after the COVID-19 measures come to an end. If a sponsored worker plans to make an Indefinite Leave to Remain (Settlement status) application soon, a salary reduction may affect their application.
Our team of experienced immigration specialists can help make representations to the Home Office with the ILR application to explain the exceptional and compelling reasons for this, which are related to the pandemic.
We’d like to apply for a new sponsor licence. Do we still need to send original documents?
- When an employer makes a sponsor licence application, they are usually required to send the Home Office hard copies of all supporting documents. However, many sponsors (and solicitors) have closed their offices because of the COVID-19 pandemic, making it difficult to obtain/print/send hard copies. The Home Office has therefore suggested that sponsors can send PDFs of supporting documents by email for an interim period and they will decide whether to accept them on a case-by-case basis. They may request original or certified documents, if required to decide the application. In their covering letter, applicants should explain any difficulties with obtaining hard copy supporting documents due to the COVID-19 situation and ask the Home Office to exercise its discretion and accept PDF copies.
Some Home Office applications (including Intra-company Routes sponsor licence applications) need to be accompanied by a statement sworn in front of a solicitor or notary. We have an in-house notary who can prepare e-notarised statements and sign off any exhibits electronically. The Home Office has also confirmed that e-signatures can be used to “sign” submission sheets or legal letters. Once a decision has been made on the application, the Home Office will send the confirmation letter to the Authorising Officer by email.
Right to Work Checks and Employer Compliance Obligations
Can we conduct right to work checks remotely during the pandemic?
- Yes, the UK Government extended the adjusted COVID-19 right to work check until 31 August 2021. You can read further details here.
Contact our business immigration specialist Anita de Atouguia or your usual Doyle Clayton immigration contact if you need assistance with any immigration issue.