How will COVID-19 affect UK immigration?

As the UK responds to challenges presented by coronavirus, existing immigration processes and considerations for employers have undergone significant changes.

We set out relevant aspects of the Home Office’s coronavirus guidance and our suggestions in the absence of guidance, to help employers navigate these unprecedented challenges.

Impact on current and future immigration applications

Extended visas for foreign nationals who cannot return home due to the COVID-19 pandemic

The Home Office has confirmed that foreign nationals currently in the UK whose leave has expired or is due to expire before 31 May 2020, who cannot return home due to the COVID-19 pandemic, will have their visas automatically extended until 31 May 2020. Migrants in this position should update their records with the Coronavirus Immigration Team.

Applications to extend or switch into a new immigration category

Employees who already hold leave to remain in the UK should still submit an application to extend their stay before their existing visa expires. They should do this by submitting the relevant online application form and paying the Home Office fee.

The Home Office has temporarily expanded the in-country switching provisions to allow individuals to apply to switch routes whilst remaining in the UK where they might otherwise have been required to leave the UK and apply from outside.

It will still be necessary to attend an appointment as part of the application process. As all Visa Application Centres (VACs) in the UK are currently closed, the Home Office has confirmed that employees’ immigration status in the UK will not change as a result of them being unable to attend an appointment. Applicants should then complete this part of the process as soon as the VACs re-open.

Prospective employees who are outside the UK

All VACs around the world are closed. If your sponsored employees have an appointment, they should be notified of this in advance.

For pending applications, as centres are closed there has also been a delay in the return of passports. If they have paid for courier return, their passport will be returned as soon as possible if courier routes remain open.

If they haven’t already paid for courier return and would now like their passport to be returned by courier, they should contact either TLS or VFS global directly to arrange this.  

Applicants unable to complete English language or Life in the UK tests

English language testing facilities and Life in the UK test centres are currently closed in the UK and in the majority of overseas locations. The Home Office have offered no guidance on what to do if a migrant is unable to meet an English language or Life in the UK test requirement at the time of submission. In the absence of guidance we recommend taking a pragmatic approach by submitting their online application and then completing this step as soon as possible and before attending their visa appointment.

If you have an employee whose visa is due to expire or who has a pending application that has been impacted by the COVID-19 pandemic, please contact a member of the Charles Russell Speechlys Immigration team for individual advice.

Absences from the UK for the purposes of Indefinite Leave to Remain and Citizenship

The Home Office has issued no guidance on how applications for Indefinite Leave to Remain (ILR) and to Naturalise as a British citizen will be considered where residence requirements are exceeded because an applicant was stuck outside the UK due to COVID-19.

• Applicants for Indefinite Leave to Remain (ILR) whose absences will be in excess of the limits may be able to argue that the current policy to allow excess absences for serious and compelling reasons such as serious illness or a natural disaster should be extended to cover COVID-19.
• Applicants for Naturalisation may be able to argue that the Home Office should apply their policy to exercise discretion where absences are for an exceptionally compelling reason of a compassionate nature. 

We recommend retaining evidence of cancelled flights, travel restrictions or medical advice against travel in case this is useful in explaining your absences when submitting a future ILR or citizenship application.

Considerations for employers and Tier 2 sponsors

Absences from work due to COVID-19

Considering the current advice on self-isolation and social distancing, the Home Office has waived a number of requirements on Tier 2 and Tier 5 sponsors. The current guidance is that:

• Sponsors do not need to report absences due to COVID-19 or remote working.
• There is no requirement to withdraw sponsorship if an employee is absent from work without pay for 4 weeks or more.
• The Home Office will not take compliance action due to the Coronavirus outbreak and will keep this under review in light of these exceptional circumstances.

Reduction of salary

Employers can temporarily reduce the pay of their sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.

Any reductions, however, must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. This means that migrant and non-migrant workers must be treated alike. For example, if the company policy is to reduce pay for a certain department or at a certain level of seniority, this should apply to all relevant workers, sponsored or otherwise.

These reductions must be temporary and the affected employees’ pay must return to at least the previous level once the COVID-19 special arrangements have ended.

We recommend that the following action is taken for any reductions in salary:

• Employers should notify the Home Office through the Sponsor Management System (SMS) of a reduction in salary, confirming the temporarily reduced gross annual salary and that this is part of a company-wide policy to reduce redundancies.
• Employers should keep a record of all sponsored migrants whose pay is reduced.
• Employers should make a further report on the SMS once the arrangements have ended and pay has returned to at least the previous level.

If you are an employer considering making changes to the employment of a Tier 2 worker, such as terminating employment or reducing salaries, please contact a member of the Charles Russell Speechlys Immigration team for individual advice.

Furloughing migrant workers and making use of the Coronavirus Job Retention Scheme

HMRC guidance has confirmed that employees on all categories of UK visa can be furloughed under the Coronavirus Job Retention Scheme where they meet the eligibility conditions.

Payments made under the scheme are a grant to the employer and are not considered to be “access to public funds”, so placing these employees on furlough under the scheme should not result in a breach of their visa conditions.

Where a Tier 2 migrant is to be placed on furlough, we recommend that a notification is made as outlined above if this will result in a temporary reduction in salary.

Certificates of Sponsorship and visa applications

The Home Office has confirmed that if you have issued a Certificate of Sponsorship (CoS) and the sponsored employee has not yet applied for a visa before the expiry or “use by” date recorded on the Certificate, they will not automatically refuse such cases. They will consider each application on a case-by-case basis.

We recommend that applicants retain evidence of delays or difficulties to enter the UK, cancelled or unavailable biometric appointments, or any Government advice or individual medical advice they receive regarding travel or self-isolation, as this may be useful once they are able to file their application.

Sponsoring employees whose Tier 2 visa application have not yet been decided

The Home Office has confirmed that sponsored employees with pending Tier 2 visa applications can start work for their sponsor before receiving a decision on their application if the following criteria are met:

• the sponsor has assigned them a CoS
• the employee submitted their application before their current visa expired
• they are employed in the role as stated on their CoS

Employers’ reporting responsibility for sponsored workers starts from the date the CoS is assigned. Employers must ensure they continue to comply with sponsor licence obligations by recording and maintaining the relevant information for sponsored workers on their own systems. If the employee’s visa application is subsequently refused or rejected then sponsorship must be withdrawn and their employment must be terminated.

This may be particularly useful for employees already in the UK under Tier 2 General who are changing employers.

Right to work checks and on-boarding remotely

Where you cannot conduct an in person right to work check because your office is closed and/or remote working arrangements are in place, the Home Office is permitting virtual checks to be carried out, with the original seen as soon as possible once it is safe to do so. Employers should either:

1. Conduct an online right to work check using the Home Office’s right to work service - https://www.gov.uk/view-right-to-work. This is available for employees who hold a Biometric Residence Permit, Biometric Residence Card or who have been granted Pre-Settled or Settled Status under the EU Settlement Scheme (employees will need to give permission for you to view their details); or
2. Conduct a right to work check remotely. Where it is not possible to conduct a conventional right to work check using the person’s physical right to work documents or the online right to work check service, the check can be done via a video call. Where you propose to do so, the procedure below must be followed:

• Schedule a video call with the employee (for new employees this should be done before they commence work) and ask them to join the call with their original right to work documents to hand;
• The employee should send you an electronic copy of their right to work documents in advance of the call;
• The employee should show their right to work documents to you on the call so that you can check the details and compare them to the electronic copies you have received; 
• You should make a note on the electronic copies as follows: “Adjusted check undertaken on [insert date] due to COVID-19.” This should be signed by the person carrying out the check and the copies must then be kept on the employee’s file.
• A retrospective check must be carried out within eight weeks of the COVID-19 measures being lifted (the Home Office will notify employers of this date). This right to work check should be carried out in the usual way. The copies of documents taken during this check should be marked as follows: “The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”. These copies should be signed by the person who carried out the retrospective check and retained on the employee’s file along with the copies from the earlier, virtual check.

If an employee cannot provide their documents, you should contact the Home Office’s Employer Checking Service for confirmation of their right to work - https://www.gov.uk/employee-immigration-employment-status. If a Positive Verification Notice (PVN) is issued, it will provide you with the statutory excuse for six months and you should carry out a follow-up check as soon as possible before the PVN expires.

The Immigration Team at Charles Russell Speechlys are keeping abreast of the latest developments and how these will impact our clients. For further guidance and support, please contact Rose Carey or Kelvin Tanner.