Employment and Immigration Update - Coronavirus updates


27 November 2020

Healthcare workers, quarantine, exceptional assurance, COVID-19 concessions and appeals are all covered in our Coronavirus update.

Healthcare workers

On 23 November 2020, the Government announced another free one year visa extension scheme for frontline healthcare workers with visas expiring 1 October 2020 - 31 March 2021 (and their dependants). However, the scheme is still not live yet.

This means that in practice there will be some people who have already paid Home Office fees and who will need to claim a refund. It is disappointing that this scheme was not arranged back in September. More details, including the list of roles that are covered can be found on the Government website.

Please note the scheme does not apply if you are changing employer. It also does not apply in cases where the healthcare worker has indefinite leave to remain but their dependants still need to apply for visa renewals.

Quarantine

Despite the second lockdown in England and a restriction on travel, the UK borders remain open. The list of “travel corridors” is still being regularly updated and the latest information can be found on the Government website. That page also contains a link to sign up for alerts whenever a change is made.

To date the only country which has been subject to a UK entry ban, is Denmark. This is due to concerns that COVID-19 had spread to mink farms there, mutated and was re-infecting humans with a version of the disease that may not respond to the vaccines currently being developed. However the ban on travel from Denmark will be lifted from 4:00am on Saturday 28 November 2020.  There will still be a requirement to quarantine for 14 days.

Meanwhile, the Transport Secretary recently announced plans to give new arrivals in the UK an opportunity to reduce their 14 day quarantine period. From 15 December 2020 there will be an option to take a privately funded test on day five of the quarantine period. If this is negative, then the individual will be released early. Test results are expected within 24-48 hours. Therefore this could halve the required period of self-isolation and so it is hoped that it will help the struggling travel industry.

Tests from private firms will cost between £65 and £120. Employers should review their policy on allowing employees to travel internationally and decide how they will handle requests from employees for test costs to be refunded. It will be important to take a consistent approach, to avoid any allegations of discrimination. We recommend that the issue is considered and the employer’s position communicated to all staff before 15 December 2020.

Exceptional assurance

As discussed in previous updates, the concept of “exceptional assurance” was introduced by the Home Office from 1 September 2020 to cover circumstances where an individual’s visa is expiring, but they are unable to leave the UK due to COVID-19. In this situation the migrant may apply for exceptional assurance by completing an online form to explain to the Home Office why they are unable to leave.

The exceptional assurance process has now been extended to cover anyone whose visa is due to expire on or before 30 November 2020. We anticipate a further extension may be made for December, but this will need to be confirmed in due course.

Anyone requesting exceptional assurance needs to fill in an online form to explain why they can’t leave by 30 November 2020. If the form isn’t working, the Home Office advises emailing [email protected] with the subject line “Request for an assurance” instead.

COVID-19 related concessions

The Home Office continues to allow people to apply for further leave to remain in the UK in cases where they would usually need to apply for a visa from their home country, provided that the application is “urgent”. There is little definition to what constitutes urgent applications, but where FCO guidance suggests that only essential travel should be undertaken and where the migrant needs the new visa to start a new job in the UK, this appears to be reasonably accepted.

It also remains the case that if you are applying for a visa from abroad, you can apply and attend a biometric appointment in a country other than where you live.

For the purpose of spouse visa applications, the Home Office has extended the date for accepting furloughed workers’ income as if it were 100% of the original salary for applications up until the end of January 2021. A similar concession has been applied to self-employed workers.

There has also been an update for the Start-up route. Where a migrant holds leave in the Start-up route and their business has been detrimentally impacted by COVID-19, they are able to apply for a one-time grant of additional leave of 12 months, beyond the normal maximum two year period permitted in the Immigration Rules.

There is also a new coronavirus section in the guidance for Start-up and Innovator endorsing bodies, which advises those handing out endorsements to have “frank discussions” with would-be applicants, who may wish to think about “whether they are likely to be able to start developing their business in the UK under the current situation”.

Appeals

The pandemic has also affected how immigration appeals are handled, with many being decided without a hearing.

In the recent case of Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), the High Court has declared that the guidance published by the President of the Upper Tribunal on “arrangements during the COVID-19 pandemic” is unlawful. It was said that the guidance focused too heavily on deciding cases without a hearing which is “inconsistent with basic common law requirements”.

Hundreds of asylum and human rights appeals have been determined without a hearing since the guidance was published on 23 March 2020. The President of the Upper Tribunal has now, in response to this Judgment, withdrawn the unlawful guidance. Additionally, all immigration appellants who lost their Upper Tribunal case without a hearing from 23 March 2020 will be told to seek legal advice on re-opening their case.

This article is from the November 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact Clare Hedges or Janice Leggett in our Immigration Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.

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