Tier 2 Immigration - Covid-19 FAQs
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Tier 2 applicants (General and Intra-Company Transfer)
My Tier 2 leave is due to expire. Can I stay in the UK?
- If you are in the UK with leave that expires before 31 July 2020 and can’t leave the UK because of travel restrictions/self-isolation related to COVID-19, you can apply to extend your leave to 31 July 2020. To apply for this extension, contact the Home Office’s Coronavirus Immigration Team using this form. You should only use this form 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 leave expires in the normal way.
If I submit my application before my leave expires, am I allowed to keep working?
- If you apply to extend your current leave, your leave is automatically extended pending the outcome of your application. The terms of your leave will remain the same until your new application is decided. So, if you are currently allowed to work then you may continue to do so.
If you currently have Tier 2 (General) leave to remain and you want to move to a new Tier 2 (General) sponsor, you should be able to start work before your new leave has been granted if:
- Your new employer has assigned a Certificate of Sponsorship to you
- You submitted your Tier 2 (General) leave to remain application before your current leave expired and
- Your new job is in the same SOC code (or job type) as is shown in your Certificate of Sponsorship
If your Tier 2 (General) Change of Employment application is rejected or deemed invalid, your new employer must stop sponsoring you and you must stop working for them.
I am currently in the UK on a Tier 5 (Youth Mobility Scheme) visa. Can I switch to Tier 2?
- If you have Tier 5 (Youth Mobility Scheme) leave, you would normally have to leave the UK to make a Tier 2 (General) visa application. However, the Home Office has temporarily relaxed the usual rules and so if your Tier 5 leave expires before 31 July 2020, you should be able to apply for Tier 2 (General) leave from within the UK (‘in-country’).
If your leave expires after 31 July 2020 but you have an urgent need to apply in-country (for example, as you are starting a new job) and can’t leave the UK to make an application, then you may also be able to apply to switch in-country.
You must make sure that you satisfy all requirements of the Tier 2 (General) visa route.
I submitted my in-country application last month but haven’t been able to book a biometrics appointment. What should I do?
- If you make a leave to remain application from within the UK, you usually have to visit a UKVCAS centre to give your biometrics. Your application won’t be decided until you have done this.
The UKVCAS centres closed at the end of March due to the COVID-19 pandemic. They started reopening on 1 June, but there is a backlog of applications. Initially, appointments were only offered to individuals who had booked appointments that were cancelled when the centres closed in March. Now, appointments are being made available to individuals according to when their online application form was received by UKVCAS. You will be contacted by UKVCAS when it is your turn to book an appointment.
The Home Office has announced that it will reuse biometrics that applicants have submitted previously, where possible. If this applies to you, you will receive an email from UKVCAS confirming this and telling you to wait for further information. If your biometrics are reused, you won’t have to attend a biometrics appointment at a UKVCAS centre.
My UK visa has been granted and I have been issued with a 30-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?
- If your 30-day entry clearance visa has expired because you haven’t been able to travel to the UK, you should apply for a new one by emailing the Coronavirus Immigration Help Centre (CIH@homeoffice.gov.uk) with your name, nationality, date of birth and GWF reference number (your unique visa application number found on your online form) and stating “REPLACEMENT 30 DAY VISA” in the subject line (unless you applied from New Zealand, where the process is slightly different). You should be issued with a new 90-day entry clearance visa free of charge, which you can use to enter the UK.
When I arrive in the UK, will I have to self-quarantine for 14 days?
- Since 8 June 2020, residents and visitors arriving in the UK from abroad have been subject to the UK’s self-isolation or ‘quarantine’ rules.
From 10 July 2020, individuals travelling to England from a country on the government’s list of exempt countries won’t need to self-isolate. There are similar exemptions now in place when travelling to Scotland, Wales and Northern Ireland but the exempt countries are not identical. The quarantine rules continue to apply if the individual has made a transit stop in the previous 14 days in a country not on the applicable list of exempt countries.
Before arriving in the UK, you will need to provide your journey and contact details on an online public health passenger locator form 48 hours or less before you’re due to arrive in the UK. Once in the UK, if you are subject to the quarantine rules you will not be allowed to leave the place where you are staying for the first 14 days, except in very limited situations. So, you should ensure you make any necessary accommodation plans beforehand, including any arrangements for food deliveries such as obtaining an online food shopping account.
If you plan to travel to a country that isn’t on the list of exempt countries, you should discuss this with your employer and ensure you are able to work from home if required while you are quarantining. If you break your quarantine in England, you will receive a £1,000 fine. There are different penalties in Scotland, Wales 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) leave can apply for Indefinite Leave to Remain (ILR) 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.
The Home Office hasn’t confirmed how it will treat absences caused by the COVID-19 pandemic when considering applications for ILR or British citizenship. However, the current guidance says that caseworkers can exercise discretion and grant ILR if excess absences are because of the illness of the applicant/ a close relative or a natural disaster. So, it is hoped that applicants who have excess absences from the UK because of the pandemic will still be granted ILR.
Tier 2 Sponsors
Can we still sponsor new hires?
- The Home Office has temporarily relaxed the usual Right to Work rules due to COVID-19. So, if an individual is in the UK with another Tier 2 sponsor or on a Tier 4 student visa, they can start working for you before their new Tier 2 (General) leave has been granted if:
- You have assigned a Certificate of Sponsorship (CoS) to them, after carrying out the Resident Labour Market Test (if relevant)
- The migrant submits their Tier 2 (General) Switching application before their current leave expires and provides you with evidence that their application has been submitted and
- The migrant’s job will be in the same SOC code (or job type) as the one listed in the assigned CoS.
If the migrant’s Tier 2 (General) Switching application is refused/ deemed invalid (for example, because they don’t attend a biometrics appointment) then you must stop sponsoring them and the migrant must stop working for you.
This is a temporary relaxation of the usual Right to Work rules and the Home Office hasn’t confirmed how long it will last. It may continue for a while because there are ongoing delays with the processing of in-country leave to remain applications due to the COVID-19 pandemic. However, you should check the government website [https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-tier-2-4-and-5-sponsors] before the individual starts working for you to make sure the relaxation of the rules still applies.
This temporary relaxation of the usual rules does not apply to migrants you wish to employ who are based outside the UK. From a UK immigration law perspective, it is fine for the individuals to work for you (and be on the company payroll) while based outside the UK if they are waiting to receive a decision on their UK visa. However, you should (1) check that they have the right to work in the country they will be working from if relevant and (2) keep a clear paper trail to show that they are working remotely (and are not working physically for you in the UK), to comply with the UK’s Prevention of Illegal Working laws. We recommend that you take legal advice before agreeing to employ someone in this way. Our employment team can assist with drafting/reviewing your UK employment contracts and/or any letters confirming the terms of your migrant’s employment while working for you abroad.
An employee has applied to extend her existing leave 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 Tier 2 (General) leave, 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 their Extension application is unsuccessful, they won’t have the right to work for you in the UK unless they can obtain UK leave to remain under a different immigration route. You may therefore need to terminate their employment (we suggest that you take legal advice first and our employment team can help with this).
We have assigned a Tier 2 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, sponsored workers must start their role in the UK within 28 days of (1) the start date shown on their used Tier 2 CoS (as amended by any sponsor notes) or (2) the date their UK visa is granted.
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. Remember to add this sponsor note before the CoS expires! The Home Office hasn’t yet confirmed how long a start date can be delayed but we hope they will take a pragmatic approach. We understand they will make decisions on a case-by-case basis. We therefore strongly advise sponsors make the necessary SMS reports about the delay to minimise any risk of refusal.
We have assigned a Tier 2 Certificate of Sponsorship 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 Tier 2 ICT or General CoS 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.
Do I still need to do the Resident Labour Market Test?
- Yes. This requirement has not changed and so you must continue to carry out the RLMT for any roles requiring Tier 2 (General) sponsorship, unless an exemption applies.
Are my sponsor duties affected by COVID-19?
- Generally, no. The Home Office has temporarily relaxed the rules around Right to Work checks slightly but you should still be doing everything you can to comply with your sponsor duties (including reporting changes 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.
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 this 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 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) 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 Tier 2 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. 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 (ILR) application soon, a salary reduction may affect their application. Doyle Clayton 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 Tier 2 (ICT) sponsor licence applications) must 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.
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
How do I do a Right to Work check remotely?
- The Home Office has temporarily adjusted the rules around Right to Work checks, as many offices are closed and so it isn’t possible to do the usual “manual” Right to Work checks. These changes to the manual Right to Work check process are:
- Right to Work checks can be made remotely on a video call
- You can accept scanned copies of documents from job applicants or new employees and
- The Employer Checking Service can be used as normal.
f you have done a Right to Work check under the temporary measures, you should record the check as an “adjusted check” and complete a normal Right to Work check as soon as possible.
Detailed guidance on the temporary rules is available here. You should make sure to follow this guidance carefully, to establish a statutory excuse against illegal working penalties.
For sponsored workers with a Biometric Residence Permit or Biometric Residence Card, you should be able to follow the online Right to Work check process.
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