28 April 2020
Law at Work - May 2020 – 2 of 4 Insights
On 12 March 2020 coronavirus (COVID-19) was declared a pandemic by the World Health Organization. As travel restrictions and quarantine measures continue to be rolled out round the world, the Home Office released guidance on 24 March for individuals whose visas have expired or are due to expire imminently. Whilst this guidance is helpful, the fast changing nature of the pandemic has left UK businesses and visa holders in a state of uncertainty. Charlotte Sutton and Vikki Wiberg from Taylor Wessing's immigration team explore below the current position including the latest Home Office guidance and some of the key questions that UK businesses and visa holders may have. This can be read alongside our article on employment issues.
The Home Office has produced advice on some sponsor licence duties. As UK employees are increasingly absent from work or work remotely, UK businesses holding a Tier 2 Sponsor Licence should take steps to remain compliant with their sponsor duties. The Home Office has confirmed:
Sponsors should remember that if concerns about coronavirus impact on a sponsored Tier 2 visa holders plans to come to the UK or to leave earlier than anticipated then this must be reported in the usual way within 10 working days (along with any other reportable changes).
Under the government CJRS, businesses may be able to keep employees on payroll if they are unable to operate or have no work due to coronavirus. This is known as designating employees 'on temporary furlough'. In such circumstances, the government will pay 80% of an employee's base salary up to a monthly cap of £2,500 which means that furloughed employees may have a temporary reduction in salary. Employers can, but are not required to, top up the salary.
On 3 April the Home Office published guidance to confirm that the salaries of all Tier 2 sponsored workers, including those on restricted Tier 2 General visas, can also be reduced to the lower of 80% of overall base salary or £2,500 per month. It confirms that Tier 2 workers can also be designated as being on temporary furlough and that access to the CJRS (which is managed through the employer) will not be considered accessing a public fund by the visa holder. There are still some considerations that need to be addressed. For example how does a reduction in salary interact with some Tier 2 visa requirements such as the minimum salary thresholds. We expect that there will be an exemption to the usual rules around salary for those on furlough but have sought clarification on this point.
When designating sponsored employees on temporary furlough employers should consider:
We anticipate that the Home Office will issue further guidance on this area. In the meantime companies must be careful when managing furlough for Tier 2 visa holders to avoid any potential discrimination claims or breaches of their Sponsor duties.
To carry out compliant RTW checks when on-boarding a new employee, a company must normally meet the employee before they start work and have sight of their original passport and other identity documents. Normally, unless they complete compliant in person checks the company will not have a defence against future illegal working charges.
On 30 March the Home Office published guidance to confirm that during this time employers can now conduct RTW checks by video call. Workers can submit a scanned copy or photo of their original documents via email or a mobile app followed by a video call with the worker to present their original documents to camera allowing the employer to check against the digital copies. Employers must keep a record of the date the check was made and mark it as 'adjusted check undertaken on [insert date] due to COVID-19'. Employers must take compliant RTW checks within 8 weeks of the end of the current CIVID-19 measures. Both copies should be kept on file. More details can be found here.
If the employee is a non-EU national who holds a biometric residence permit card or biometric card, or is an EEA national who holds a status under the EU Settlement scheme, an employer can use the online RTW checking service whilst doing a video call (with the worker's permission). The RTW checking service is a Home Office online portal (UK Gov "View a job applicant's right to work" ) allowing online RTW checks even when the employer does not have access to the original documentation. An online response should be generated showing a picture of the job applicant or employee to be verified and details of any visa conditions (if applicable). This response should also be retained on file.
Individual's applying to extend / switch their visa from within the UK or applying for British Citizenship need to attend an appointment at a Sopra Steria UKVCAS Support Centre to enrol their biometric data (fingerprints and photo) as part of the application process. On 30 March 2020, all Sopra Steria Centres in the UK were closed until further notice, along with all Post Office enrolment Service and Support Centres. It is now no longer possible for applicants to book an appointment via the Sopra Steria website. That said, as set out in 'Guidance for UK visa holders' above, individuals must still submit an application online if they intend to remain in the UK beyond the expiry of their current UK visa . The submitted application will be processed once the UKVCAS Support Centres re-open. Applicants that have already booked an appointment or have a biometric enrolment letter will be contacted and told what to do next – we understand that existing appointments will be rescheduled for 6 weeks time.
The Home Office have suspended all Priority and Super Priority Visa Services, which means that standard processing times will apply to any recently submitted applications (where biometrics have not been enrolled) once the UKVCAS Support Centres re-open. For most applications standard processing times are approximately 8 weeks but may be longer given that Home Office will have a backlog of applications when services return to normal. After an application is submitted online, the applicant will not be able to travel outside of the UK until a decision has been issued, or the application will be treated as withdrawn.
Currently all overseas UK Visa Application Centres (VACs) are closed until further notice. This includes all VACs in the US which are closed until at least 4 June 2020.
The submission of biometric data is a mandatory step in the visa application process. The closure of these sites means that UK visa applications will not be processed until they re-open. Applicants are encouraged to visit the website of the relevant VAC for information.
Whilst the guidance is a starting point for UK businesses and those with imminently expiring visas, at the time of writing the Home Office has not addressed many key questions. Some of these are set out below.
In line with the Home Office guidance published on 3 April, we understand that any Tier 2 sponsored worker's salary can be reduced for short-term working purposes below the amount in the initial CoS. This is a key change from the usual restrictions on salary reduction for those sponsored through the Tier 2 General RCoS route where this takes salary below the level set out in the initial RCoS request. This means sponsors must usually continue to pay migrants at the level set out in their RCoS (even if they agree to a reduction in hours worked).
It is still not clear how a reduction in salary interacts with the various Tier 2 visa requirements, particularly the minimum salary requirements for a Tier 2 visa. We have sought clarification. Again reductions in salary for any reason need to be part of a company-wide policy to ensure that all workers (sponsored or not) are treated the same.
The Home Office has confirmed that, in a change to its normal requirement for prospective sponsors to post original / certified copy supporting documents to them within 5 working days of submission of the online licence application form, it will accept electronic copies of sponsor licence documents (via email) at their discretion on a case by case basis. We suggest businesses email the Sponsor Licence Team (SCOC@homeoffice.gov.uk) before sending any electronic documents to check they will be accepted. The Home Office have confirmed that they still reserve the right to request original or certified documents and discretion based on the above will be noted on their records. As usual a confirmation letter will be sent via email to the Authorising Officer once a decision on the application has been made. All electronic documents must still meet the requirements outlined in published guidance as part of the Sponsor Licence application.
Typically applicants must have no more than 180 days absence from the UK in each of the years on which they are relying for the ILR application. This is a strict requirement. The Home Office residence guidance for ILR applications does contain flexibility around absence for "compelling reasons". This does not expressly refer to coronavirus absence and any decision on excessive absence would be a subjective one. We recommend keeping absence to a minimum where possible and retaining evidence of the links to the absence and coronavirus (e.g. flight booking information, FCO guidance etc).
On 28 April the Home Office published guidance confirming that holders of expiring / expired 30 day visas can, until the end of 2020, request a replacement visa with revised validity dates free of charge. Applicants need to contact the Coronavirus Immigration Help Centre via email (CIH@homeoffice.gov.uk), with their name, nationality, date of birth and GWF reference number in an email with ‘REPLACEMENT 30 DAY VISA’ in the subject line. Applicants will be contacted when the VACs reopen to arrange for a replacement visa to be endorsed in their passport. It is not clear how quickly new visas will be issued or whether the process can be expedited by payment of priority fees. The guidance published reassures applicants that they will not be penalised for being unable to collect their BRP while coronavirus measures are in place.
Closures of VACs have left many applicants in "limbo" and unable to submit their biometric data following submission of their online application forms. Whilst usually, applicants need to submit their biometric data within 45 days for the application to remain valid, this has temporarily been extended to 240 days. VFS Global has confirmed that applicants will be able to schedule a new appointment or reschedule an existing one once the VACs re-open if their appointments have been missed.
Again, there is no Home Office guidance on this point. Usually fees are not refunded for visas that have been issued. VFS Global currently maintains this position on their website / Coronavirus FAQs page for applications that have been made overseas. Those whose visas are still being processed may be able to withdraw their applications and seek a refund by emailing email@example.com. Any refund will be at the sole discretion of the British embassy.
On 257 March the Government published the Coronavirus Act 2020. Amongst other things this confirms the pre-existing (albeit currently more limited) right for an Immigration Officer to hold anyone arriving at a UK port of arrival for further screening if the Immigration Officer has reasonable grounds to believe that (i) they may be infected or contaminated with Coronavirus and there is a risk that they might infect or contaminate others or (ii) they have left an infected area within the 14 day period immediately preceding the date of arrival in the UK. The Act contains a the power to detain an individual for 48 hours or until such time as any screening requirements have been complied with and assessment carried out. There is a fine of £1,000 for non-compliance.
As above, the Sopra Steria UKVAC Centres are now closed until further notice. This means applicants are unable to schedule / attend appointments to submit their biometric data as part of the citizenship application process. In addition, to complete the process of becoming British, applicants are required to attend a Citizenship Ceremony and obtain a certificate of naturalisation / registration. Citizenship Ceremonies are starting to be called off (although applicants should check with the relevant Council) and that the Home Office are no longer issuing naturalisation / registration certificates to applicants
UK businesses should look out for Home Office and Public Health England guidance and seek advice on any queries particularly those relating to Sponsor Licence compliance.
by Vikki Wiberg
by Multiple authors
Update from 16 March 2022
by multiple authors