Employment and Immigration Update – Immigration round-up September 2020

A round up of immigration updates including frontier workers, exceptional assurance and details of the suspension of the Home Office visa streaming algorithm. This article also includes the latest on the Immigration Health Surcharge, quarantine requirements and a sponsor licence update.

Frontier workers

New guidance has been produced for frontier workers who want to continue working in the UK after the end of the Brexit transition period and for those who wish to start working in this way after January 2020.

Frontier workers are EU, EEA or Swiss citizens, who are employed or self-employed in the UK, but live outside the UK and so are not eligible for the EU Settlement Scheme.

If you are frontier working in the UK by 31 December 2020, you will need to apply for a frontier worker permit. However, we are still waiting for this scheme to actually be launched! The Government has said that applications will be free and that it will be possible to apply inside or outside the UK.

Anyone who wants to begin frontier working from 1 January 2021, will need to apply through the new immigration system. We are still waiting for the new rules to be published.

Irish nationals will fortunately be exempt from the frontier worker provisions, as they already have a separate right to work in the UK.

Exceptional assurance

From January to August 2020, the Home Office recognised that many migrants whose visas were expiring, were unable to leave the UK due to the COVID-19 pandemic. There was therefore a system of applying for an automatic extension of leave to remain.

This policy has now ended, as the Home Office believes most migrants should now be able to leave the UK when their visa expires. No further automatic extensions of leave will be granted.

Instead, any migrant whose visa is expiring between 1 September and 31 October 2020 and who plans to leave the UK (rather than apply for a new visa), but who is prevented from doing so, for example due to illness, or a lack of flight availability, needs to apply for exceptional assurance. You do this online.

You will need to provide evidence to explain why you cannot leave at this time. For example if you have COVID-19 and cannot travel, you should provide a copy of your test results. Or if you have only been able to book a later flight, you should provide evidence of this.

The guidance states that if granted the exceptional assurance will “act as a short-term protection against adverse action or consequences after your leave has expired”. The guidance has now been expanded, to confirm that if your previous leave allowed you to work, study or rent accommodation, you may continue to do so during the exceptional assurance period.

If you are granted exceptional assurance, this will be until a specified date. If you then still cannot leave the UK, you will need to reapply.

The guidance states: “Exceptional assurance does not grant you leave.” It is therefore still unclear how the Home Office will treat this period when it comes to any future immigration applications you may make.

Home Office algorithm suspended

Following a legal challenge brought by the Joint Council of Welfare for Immigrants (JCWI) and Foxglove (a digital rights legal group), the Home Office agreed to suspend use of its visa streaming algorithm from 7 August 2020.

The algorithm has been used since 2015 to allocate risk ratings to visa applications, using a traffic light system. JCWI had argued that the algorithm gave certain nationalities a higher risk rating which meant their applications were viewed more sceptically, took longer to determine and were more likely to be refused. They argued that this amounted to race discrimination in breach of the Equality Act 2010.

The Home Office has agreed to redesign the process, looking into issues of unconscious bias and the use of nationality in automated visa applications.

IHS increase delayed

We previously reported that the Immigration Health Surcharge (IHS) would be increasing from
1 October 2020. This has been delayed, in order to incorporate an exemption for migrants who are applying for a Health and Social Care visa.

The updated draft legislation has been approved by both Houses of Parliament and just requires a Minister’s signature to become law. However, it will then only take effect 21 days later. This means the increase cannot come into force until mid-October.

This gives a bit more time to get visa applications submitted before the increase takes effect. The change is to increase the cost from £400 to £624 per year. A reduced rate of £470 will apply to under 18s, students and their dependants and Youth Mobility visa holders.

Quarantine requirements

The list of travel corridors continues to change on a weekly basis. Since our last update:

• Sweden was added to the list from 4:00am on Saturday 12 September 2020
• Singapore and Thailand were added from 4:00am, Saturday 19 September 2020
• Portugal (except the Azores and Madeira), French Polynesia, Hungary and Réunion were removed from the list from 4:00am on Saturday 12 September 2020
• Guadeloupe and Slovenia were removed 4:00am on Saturday 19 September 2020
• Denmark, Iceland, Slovakia and Curaçao will be removed from the exempt list at 4:00am on Saturday 26 September 2020.
• Police have been handing out fixed penalty notices of £1,000 to people caught breaching the quarantine rules.

Meanwhile the Government has updated its guidance on how to self-isolate following travel abroad.

Sponsor licence update

Sponsor priority service

We are pleased to report that the priority service for considering sponsor change of circumstance requests is due to resume from 5 October 2020. This can be used to expedite changes, including changes to key personnel on the licence and requests for an increased allocation of Certificates of Sponsorship.

However, there will be very limited capacity, with only 10 requests being accepted each day, rather than the usual 60 requests. We are expecting demand to be very high, especially when the service first resumes.

To use the service, you need to submit your request in the sponsor management system and then e-mail [email protected], with a completed Tier 2 and 5 priority request form as an attachment. If successful you will be required to pay the fee of £200. You normally get a decision within five working days, although we understand at the moment that may be increased to 10 working days.

Licence renewals

The Home Office is anticipating a huge increase in employers applying for a sponsor licence, in order to hire EU nationals under the new immigration system. In the meantime they are trying to get ahead with renewals for existing sponsors.

If your sponsor licence expires before 31 March 2021, you will be able to apply early to renew it. You should find that your renewal window has opened this month. Licence end dates are not affected. If you can apply early, we recommend doing so as soon as possible.

If you would like support with your licence renewal, please contact a member of our Immigration Team.

These articles are from the September 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 a member of our Immigration Team.