The effects of the global pandemic are far reaching; few have been unaffected by measures and restrictions introduced in response to the spread of COVID-19. As borders have closed and visa processing services have been suspended, those living and working outside their home jurisdictions have, and continue to face, uncertain times.
Some migrants made the decision to return to their home jurisdictions as the reality of long term border restrictions unravelled, worried they would be unable to see family for unknown periods of time. As this coincided with widespread working from home, many employers permitted their employees to continue to work from their home outside the UK.
Those who left the UK in March and have not yet returned will have now been out of the UK for more than 6 months. Some may be unable to return to the UK if borders remain closed or they are particularly vulnerable to the risks of contracting the virus.
Such migrants could be impacted when they come to apply for settlement in the UK or if they hoped to make an application for British nationality imminently.
One of the precursors to settlement in the UK is evidence of 5 years ‘continuous residence’ in the UK. Continuous residence can be ‘broken’ by excessive absences from the UK. The Home Office currently allows migrants to accumulate absences of up to 180 days in any 12 month period during the 5 years of continuous residence, prior to the settlement application. Migrants wishing to apply for British Nationality may only accumulate absences of up to 90 days in the 12 months prior to their application. Any absences in excess of 180 days for settlement, would break the period of continuous residence, unless there is a serious or compelling reason, which can include illness and natural disaster. A similar reason would be needed to justify absences in excess of 90 days for the purpose of a nationality application.
Whilst the Home Office has published various concessions to mitigate the impact of COVID-19. measures on UK visa holders, it is yet to confirm the position in respect of absences outside the UK in the context of continuous residence. In the absence of a published position, it is hoped that the Home Office will take a pragmatic approach and allow those who are otherwise eligible to apply for settlement or British Nationality to continue with their applications, on the basis of a compelling reason for any excess in their absence. Nevertheless, migrants in this position are strongly advised to retain evidence of their circumstances in order to justify the reason for any absences over the permitted level.
Similarly those migrants who left the UK and would ordinarily have been eligible to apply for an extension of their leave to remain from within the UK will have faced difficulty in applying for an extension if their leave expired whilst outside the UK. Ordinarily this would also constitute a break in continuous residence. However, whilst again there is no formal policy position from the Home Office, it is hoped that migrants will not be disadvantaged in their leave applications where the difficulties arise due to the COVID-19. pandemic. As above, we would recommend migrants retaining evidence of not having been able to return to the UK in time, as well as aiming to make their applications as soon as practically possible.
It is advisable for the employer to be aware of the employees’ place of work at all times in light of the implications of working abroad. Employees should therefore be required to inform the employee of their place of work while working from home.
We can advise employers and their migrant employees as to the most appropriate approach in these difficult circumstances. Employers who have employees unexpectedly working abroad may also need to consider the tax implications of employees working in other jurisdictions, GDPR and other local employment law implications. We can advise further on all such aspects if required.