The current situation is presenting a number of practical difficulties for employers regarding right to work and other immigration matters that may arise amongst their employees. The Home Office has been proactive in relaxing many of its strict requirements to assist, however some areas remain uncertain:
- Right to work checks – a valid right to work check is required in order to obtain a statutory excuse against illegal working. Right to work checks must be conducted by an employer before the employee commences work and to ensure any time limited leave to remain is validly extended. Those checks must be conducted by checking the original document(s) in the presence of the document holder. An online right to work check can also be conducted for some categories of leave, however the employer must still check that the online document is consistent with the document holder when they are physically present. In light of social distancing and extensive remote working, the Home Office is permitting employers to complete manual and online checks by video call. In the case of a manual check (which remains the most widely used approach), the candidate/employee should have their original documents with them, send a soft copy to the employer and then join a video call with the employer. The document should be checked against the digital copy and to ensure it is acceptable evidence of a right to work. The physical appearance of the candidate/employee should also be checked to ensure consistency with the photograph/details in the document. The employer should print the digital copy and write ‘adjusted check completed on [DATE] due to Covid-19’. A usual check should then be conducted retrospectively, once the adjusted measures end.
- Tier 2 reporting obligations – ordinarily a Tier 2 Sponsor is required, as part of their sponsor duties, to report a change in the workplace of an employee and any absences over 4 weeks. However, the Home Office has relaxed these reporting requirement. Given that most employees are now working from home, there is no requirement to report this as a change in work location. Similarly if a sponsored migrant is absent for reasons related to Covid-19, there is no requirement to report this and where the absence extends beyond 4 weeks and is unpaid, this will not trigger sponsorship withdrawal.
It is also possible for Tier 2 Sponsors to temporarily reduce the pay of sponsored migrants to 80% of their salary or £2500 per month, whichever is the lower, providing it increases back to the usual level once the period ends. Such a salary reduction would usually trigger sponsorship withdrawal. Such reduction should still be reported using the Tier 2 Sponsor management system.
Where sponsors are required to notify the Home Office of changes to the sponsor licence and a submission sheet and supporting evidence is required, such items can now be emailed to the dedicated Home Office team dealing with Covid-19 related matters.
- Visa applications – applications across the globe are generally delayed/paused pending the re-opening of visa processing and appointment (biometric enrolling) centres, English language test providers and easing of lockdown measures. In order to mitigate the impact of this, the UK Home Office has:
- Automatically extended the visa expiry date to 31 May 2020 for those who were due to leave the UK since the travel restrictions were imposed, providing the applicant notifies the dedicated Home Office team prior to the original expiry date;
- Amended the switching (the term used to permit a migrant to make a visa application within the UK) requirements to provide that where an applicant is applying for a long term UK visa, they may do so from within the UK, rather than having to make the application on an out of country basis. The application criteria will still have to be met;
- Permitted migrants who have a valid certificate of sponsorship (CoS) and who have submitted an in time Tier 2 visa application, to commence working with their sponsored employer before their visa application is processed.
- Furloughing foreign nationals – the Home Office has confirmed that employees working under a visa can be furloughed and that the funds paid to them under the Coronavirus Job Retention Scheme, would not amount to ‘public funds’ (which most visa holders are prohibited from accessing). If the employee holds a Tier 2 visa and the employer does not top up the salary to 100%, a migrant report via the sponsor management system, should be made to notify the Home Office of the reduction in salary.
Whilst the above measures are helpful in the short term and the Home Office has given assurances that enforcement action will not be taken where employers/migrants have not complied with usual process and guidance, employers will have to ensure that they follow the adjusted measures (set out above) carefully and retain a paper trail of having done so. The Home Office has set up a dedicated inbox and helpline for Covid-19 related immigration queries which can be a helpful starting point for generic queries.