Employment and Immigration Law Update – Immigration Law during the coronavirus crisis
31 March 2020
Right to work
In these challenging times, we know some employers are continuing to recruit. They will welcome new Home Office guidance on right to work checks, which was issued yesterday and is effective from 30 March 2020.
The special arrangements are designed to address the fact that requirements for social distancing and in some cases isolation, mean it is not possible to meet prospective employees and complete right to work checks in person with original documents.
The key points are:
- you can check photos/scanned copies of documents instead of originals
- once you have the copy document, you must arrange a video call with the prospective employee and get them to hold up the document
- you should record that it is an adjusted check carried out on [date] due to COVID-19
- you can still use the online right to work check service and Employer Checking Service as needed
- if everything appears to be in order, the employee can then start work
- you must still do the usual original document check within eight weeks of the special arrangements ending (date to be confirmed of course) in order to have a statutory excuse. This is referred to as a “retrospective check”
- if the employee starts work but fails a retrospective check you will be expected to end their employment.
These temporary changes will be welcomed by employers who are keen to on board new staff, so they can start working remotely. We will provide further updates when the special arrangements end.
To protect your position and ensure you do not overlook the need to do retrospective checks when life returns to normal, we would recommend diarising a reminder every eight weeks. You should also ensure the contract of employment is conditional on the employee providing satisfactory evidence of their right to work at any time upon request and in particular when a retrospective check is carried out.
If you are able to do a normal right to work check, because you can check original documents in person, then of course you should do so and will then not need to do a retrospective check.
Right to rent
Equivalent provisions have been introduced for right to rent checks. Landlords can find further details here.
Sponsored workers – change in work location
Normally Tier 2 sponsors are required to notify the Home Office through the sponsor management system if a sponsored migrant’s place of work changes. However, the Home Office has confirmed that in light of the current government guidance (that everyone should be working from home if possible), sponsors who ask a migrant to work from home due to the coronavirus epidemic are not required to report this.
Furlough leave and employees with visas
The Home Office has not provided any guidance on how the new Job Retention Scheme applies to employees with visas to work in the UK. However, our view is that they may be furloughed, just like other employees.
In most cases, their visa will be subject to a condition that they must not have any recourse to public funds and so this may cause concern. But as they will continue to be paid by their employer and it is the employer, not the employee, who will be supported by the Scheme, we do not see this as a problem. Furthermore there is a list of what amounts to public funds. That list does not currently include furlough payments.
Employers do need to be careful though about furloughing anyone who they have sponsored for a Tier 2 visa. There are very strict rules for sponsorship and reporting requirements that apply. In the absence of specific government guidance we recommend taking specialist immigration law advice before you furlough any Tier 2 worker.
Visas expiring 24 January – 31 May 2020
The Home Office previously announced that special arrangements were being made to assist migrants who were unable to return home to China due to coronavirus. Those arrangements have now been updated and extended to migrants of all nationalities.
They apply to anyone who is in the UK and whose visa is expiring between 24 January 2020 and 31 May 2020. There are two options.
Firstly migrants who want to return home, but cannot travel due to restrictions in place because of coronavirus, can apply for an extension of their visa to 31 May 2020. You must contact the Coronavirus Immigration Team (CIT) to update your records. The best way to contact them is by email in English to [email protected]. You should provide:
- your full name (include any middle names)
- date of birth (dd/mm/yyyy)
- your previous visa reference number
- why you can’t go back to your home country, for example if the border has closed.
The Home Office will let you know when your request is received and when your visa has been extended. They expect this to take around five working days. It is unclear on what legal basis these extensions are being granted and we strongly recommend that if possible you apply before your current leave expires.
Secondly, migrants who had intended to return home and then make an application to return to the UK will benefit from an exemption from the usual switching rules. For example it is not normally possible to apply in the UK to switch your visa from visitor, Tier 5 youth mobility or dependant, to Tier 2. If your visa expires in the relevant period, you may make a switching application by 31 May 2020. You will still be required to meet all of the other usual visa requirements. It is important to apply before your current visa expires. To discuss any potential applications, please contact a member of our Immigration Team.
Visit the Government website for further details.
Making visa applications
It is still possible to make online visa applications. However, in most cases those applications will not be progressed as it is not possible to enrol biometrics. This means the time for the Home Office to make a decision will not start to run, even if you pay priority or super priority fees.
Biometric enrolment services in the UK have been suspended as all of the Sopra Steria UKVCAS centres are closed.
Many overseas centres have also been closed and you need to check with VFS or TLS, depending on the jurisdiction where you plan to apply.
Even if your application will not be progressed at this time, you may still need to apply in order to protect your position in the UK (and ensure you get section 3C leave so you can remain here lawfully after your visa expires), or because there is a requirement to use a Certificate of Sponsorship (CoS) within three months of it being assigned to you. To discuss the timing of any application please contact a member of our Immigration Team.
Most visas are subject to an English language requirement and in many cases applicants will need to provide evidence that they have passed an approved secure English language test at an approved location.
All English tests in the UK have been suspended due to the corona virus crisis. This includes Trinity SELT and IELTS for UKVI. Tests have also been suspended in many other countries.
If the migrant has a degree taught in English, that is another way of meeting the requirement. UK NARIC (which validates overseas degrees) is still running and is issuing PDFs instead of hard copy certificates. Before issuing a certificate, they require copies of the migrant’s degree certificate, transcript and (unless the degree is from a majority English speaking country) a medium of instruction letter from the university.Unfortunately we have found that if the university is not currently in a position to provide this formal letter due to coronavirus, no flexibility is being offered.
Whilst the government has said no migrants should be disadvantaged due to the crisis, the Home Office has so far resisted calls to suspend/amend the English language requirement.
Life in the UK test
Migrants who wish to apply for indefinite leave to remain are normally required to provide evidence that they have passed the Life in the UK test. But due to the coronavirus crisis, test centres are closed from 21 March to 13 April 2020. Any test booked for that period is being automatically rescheduled and new bookings are only possible for tests after 13 April 2020.
Our understanding is that if a migrant submits their application with evidence that they have booked a test, the Home Office will place the application on hold whilst the test is taken. This is particularly important for migrants who need to ensure they apply before their current leave expires and so might not be to delay applying for ILR until the test centres to re-open.
Settled status scheme
The Home Office is still accepting applications for settled or pre-settled status under the EU Settlement Scheme. However, due to the coronavirus crisis, consideration of applications is likely to be delayed.
Applicants should be aware that whilst you can still apply and upload supporting documents via the app/online, if you need to share hard copy documents with the Home Office this is not possible at the moment. Document scanning locations have closed and they are currently not accepting documents by post. But don’t worry, EEA nationals and their families still have over a year to apply as the deadline is not until 30 June 2021.
Coronavirus Immigration Helpline
The Home Office has set up a special “Coronavirus Immigration Helpline”:
- Telephone (free of charge): 0800 678 1767 (Monday to Friday 9:00am to 5:00pm) or;
- [email protected]
Access to NHS – coronavirus exemption
Although visitors to the UK are not normally permitted to use the NHS (as they have not paid the Immigration Health Surcharge), the NHS has confirmed that overseas visitors to England, including anyone living in the UK without permission, will not be charged for testing for coronavirus. This applies even if the test shows they do not have coronavirus.
Treatment for coronavirus is also provided free of charge. However, if a visitor starts treatment and a test then shows they do not have coronavirus, they may be charged for any treatment they have after getting the test result.
No immigration checks are needed if you only have testing or treatment for coronavirus.
This article is from the March 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 further information please contact a member of Birketts’ 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 March 2020.