Employment and Immigration Law Update – Home Office response to coronavirus
29 April 2020
With the lockdown continuing for a while yet, we provide an update on the Home Office’s response to the COVID-19 pandemic.
Emergency visa extensions
The Home Office has updated its guidance for individuals who have visas expiring between 24 January and 31 May 2020, but are or have been unable to leave the UK due to the pandemic and who are therefore at risk of overstaying their visa. It was previously sufficient to simply write to the Coronavirus Immigration Team (CIT), but it is now a requirement that a specific application is lodged. Applicants must fill out the online form.
Individuals do not need to do anything else once they have submitted the online e-form and their status in the UK is secure from the point they have submitted the application. The CIT aims to respond to the application within five working days. Those that applied for an extension prior to the introduction of the online form, but who have not had a reply yet, are advised to make an on line application.
As advised in the previous update, anyone with an existing visa currently living in the UK and intending to continue living in the UK, must apply to extend their visa in the usual way, before their current leave expires. The above service is only for those who are planning to leave the UK once this is possible.
An individual with a visa which is due to expire before 31 May 2020 is now allowed to switch visa category from within the UK. This includes applications where they would usually need to leave the UK and apply for a visa from their home country. This would cover such scenarios as those on a visit visa wishing to apply for a spouse visa, or a Tier 5 visa holder applying to transfer to Tier 2.
They will however need to meet the requirements of the route they are applying for and pay the UK application fee. The terms of their current leave will remain the same until their application is decided.
Pending visa applications to start a new job
Normally a migrant who wishes to start a new job must have their new visa application approved before they can join their new employer. However, the Home Office has introduced a concession to cover the situation whereby an individual who has applied in the UK for a Tier 2 or 5 visa and is waiting for a decision can start work before their visa application has been decided if certain conditions are met:
- they have been assigned a Certificate of Sponsorship (CoS)
- they submitted an application before their current visa expired and can show evidence to their sponsor of this; and
- the job they start is the same as the one listed on their CoS.
If the individual’s application is eventually rejected as invalid, or refused, the sponsor will need to stop sponsoring them and end their employment.
In cases where sponsors wish to rely on this concession, they should remember that a sponsor’s reporting responsibilities start from the date the Certificate of Sponsorship has been assigned, not from the date that the visa is granted. However since the Sponsor Management System will not be available for reporting in the usual way about these individuals, the Home Office has said sponsors must keep and record all relevant information within their own systems.
Tier 2 Sponsor duties
As previously advised in the last update, where a Tier 2 worker’s place of work has changed due to the need to work from home during the pandemic, this does not need to be reported via the Sponsor Management System (SMS). Similarly, absences from work due to illness or travel disruption do not need to be reported. However, all other changes do need to be reported within 10 working days, including any period of furlough, reduction in salary due to furlough and so forth.
Where workers are furloughed or if sponsors cannot pay the salaries of sponsored employees because they’ve temporarily reduced or ceased trading sponsors 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 must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.
The Home Office has not expressly confirmed that it is therefore now permissible to pay Tier 2 workers less than the minimum salary required under the Tier 2 rules, but this does seem to be implied, so long as the above points are respected.
All changes in salary must be reported. Where salaries are reduced, it should be stated on the SMS that this is part of a firm wide arrangement due to the pandemic.
As a general point of principle, the Home Office has said “no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control.” However, we are still waiting for confirmation that discretion will be exercised where these arrangements mean a Tier 2 migrant does not meet the salary thresholds usually required to apply for indefinite leave to remain.
Tier 1 Entrepreneurs
The Home Office has provided guidance for Tier 1 Entrepreneurs on how the furlough of staff affects the job creation criteria in Tier 1 Entrepreneur applications. They will now permit different periods of employment to be amalgamated, but the period of time spent in furlough cannot count towards the twelve month job creation requirement.
Tier 1 Global Talent
The Home Office has confirmed that endorsements given for Global Talent visas should be accepted beyond their usual expiry date on a case by case basis.
Tier 4 Students
Due to delays in dealing with applications, the Home Office has confirmed that an individual can start their course or studies before a visa application has been decided if certain conditions are met:
- their sponsor is a Tier 4 sponsor
- they have been given a confirmation of acceptance for studies (CAS)
- they have submitted an application before their current visa expired and can provide evidence of this to their sponsor
- the course they start is the same as the one listed on their CAS
- they have a valid Academic Technology Approval Scheme (ATAS) certificate if required.
If the individual’s application is eventually rejected as invalid or refused the individual must stop their course or studies.
Where a student is permitted to start the course, the sponsor becomes responsible for reporting duties from the date the CAS is issued, not the date the visa is granted.
Tier 4 Sponsors
Given the exceptional circumstances by which education institutions have been forced to suspend lectures and classes, the Home Office has confirmed that the prohibition on distance learning is lifted, thereby allowing sponsors to offer distance learning to existing Tier 4 students in the UK or who have chosen to return overseas but wish to continue their current studies. Sponsors do not need to withdraw sponsorship in these circumstances. However, if a student has permanently withdrawn or deferred their studies, the usual reporting requirements apply.
Similarly, new international students who have been issued a Tier 4 visa but have been unable to travel to the UK are permitted to undertake distance learning and sponsorship does not need to be withdrawn. In all cases of distance learning, the sponsor is expected to continue to monitor attendance as far as it is possible to do so, for example by using expected online contact points.
Absence caused by illness, self-isolation or travel disruption due to Covid-19 does not need to be reported by sponsors but they must nonetheless maintain records of students who are absent for this reason.
Sponsors should try to provide the stipulated number of hours of teaching where possible, but where the sponsor is unable to provide sufficient tuition, students accessing courses below degree level may still be considered full time even if they cannot do the usual minimum 15 hours per week.
New international students who do not have a visa yet may choose to start a course by distance learning. As they will not need to travel to the UK, they will not need Tier 4 sponsorship for this.
Students who withdraw from their studies as a result of Covid-19 will be discounted from sponsor’s data in future Basic Compliance Assessments. Sponsors must notify UKVI of the reason for withdrawal and keep their own records of such cases.
Tier 4 sponsors are required to maintain education oversight throughout the period of their licence. The Home Office has acknowledged that the usual inspections will be affected by coronavirus and has said it will take a flexible approach. Sponsors should keep a record of any correspondence from their education oversight body.
Where English language tests cannot take place due to the closure of the test centres, in most cases higher education institutions will be permitted to make their own assessment. Any sponsors who use this temporary concession must keep records of how they undertook the assessment. They must also note on the CAS that self-assessment was used due to closure of test centres in the country where the student is applying for their visa.
The rules about ATAS certificates continue to apply. However, it is not currently possible to apply for an ATAS certificate. If a student needs to commence studies urgently they must email: [email protected].
Exemptions are in place in respect of the academic progression requirements where a student needs to apply for further leave in order to complete a course as a result of COVID-19.
The maximum length of time that a student can spend in the Tier 2 General category still applies. But the Home Office has said that in future discretion may be applied where the limit would be exceeded as a result of COVID-19.
These arrangements apply initially until 31 May 2020, by which date they will be reviewed.
On 31 March 2020 the Home Secretary announced that doctors, nurses and paramedics working in the NHS whose visas are due to expire before 1 October 2020, will have them automatically extended for one year. Family members will also have their visa extended. The extension is free and they will not have to pay the immigration health surcharge. The idea is that they will be able to concentrate on their work, instead of being distracted by a visa application.
On 29 April 2020, this policy was extended to cover frontline workers including midwives, radiographers, social workers and pharmacists, with visas due to expire before 1 October 2020. It will apply to those working both in the NHS and independent sector and includes their family members.
Importantly individuals do not need to apply. Instead, health and care employers will be asked to identify staff eligible for this extension. The extension is not limited to Tier 2 visa holders so it is important for employers to identify all staff in other visa categories that are likely to be able to qualify.
Those with visas expiring after 31 March 2020, who already have pending visa applications “will have the option of a refund”.
Dependants of healthcare workers who sadly pass away as result of contracting COVID-19 will be offered immediate indefinite leave to remain. Whilst this of course does not compensate for the loss of their loved one, it should provide some security and remove one potential stressor at an incredibly difficult time.
Making visa applications
The biometric enrolment centres both in the UK and abroad are currently closed. If an individual already made an appointment to attend a centre they will be contacted and told what to do next.
Most appointments in the UK appear to be rescheduled to end of May/June, but it is no longer possible to book appointments at all. The Home Office has confirmed “an individual’s immigration status will not be negatively affected as a result of them not being able to attend an appointment.” The key point is that if your visa is expiring, you should still submit your online application in the usual way, even if you then cannot go on to book a biometric appointment or upload your supporting documents.
All priority and super priority services have been suspended, both in the UK and abroad.
Where travel has disrupted visa applications, the Home Office will take a “pragmatic approach” to considering applications where the start date is significantly different to that stated on CoS/CAS or expired CoS/ CAS so that where a CoS/CAS has become “invalid” i.e. has expired, or is Used and individual has been unable to travel due to COVID-19 these may exceptionally still be accepted in a new visa application.
Where a visa has been approved and the passport endorsed with a 30 day vignette, but the individual is unable to travel, they can request a replacement visa with revised validity dates free of charge until the end of this year. Requests are made through the Coronavirus Immigration Help Centre and must include name, nationality, date of birth and GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. The individual will then be contacted once the centres reopen to arrange for a replacement visa to be endorsed in their passport.
Migrants will not be penalised for being unable collect their BRP from the Post Office while coronavirus measures are in place.
Support for migrants
Most visas are subject to a condition that the migrant must not have recourse to public funds.
We do now have confirmation that government furlough payments and assistance under the COVID-19 self-employed scheme are not considered to be public funds. Therefore these payments can be received without breaching visa conditions. Migrants who are required to shield due to particular medical conditions are also eligible for help with deliveries of medication and food.
Those in a destitute state or with vulnerable children, who need to claim benefits and support that are classified as public funds, can apply for the prohibition on public funds to be lifted.
Normally only those migrants who have paid the Immigration Health Surcharge are permitted to access the NHS free of charge. However, nobody will have to pay for diagnosis or treatment of COVID-19, including testing where the test comes back negative.
The Home Office has maintained throughout that that “no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control”. There are number of questions that do however remain unanswered. If you need more advice on UKVI’s response to
COVID-19 please contact a member of 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 April 2020.