The spread of COVID-19 around the globe is having significant and wide-ranging economic as well as public health impacts. Businesses are already feeling the adverse side-effects. This note will take you through the immigration implications of a number of actions you may be forced to take to protect your business over the coming months.

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Placing employees on unpaid leave

Before taking any decision to place Tier 2 employees on unpaid leave or to grant voluntary periods of unpaid leave, employers must consider their sponsor compliance duties. These stipulate that a Tier 2 sponsored worker cannot take more than four weeks of unpaid leave per calendar year, according to their normal working pattern. This is cumulative and not only in one single block.

The Home Office guidance ordinarily requires an employer to withdraw sponsorship where this occurs. However, the Home Office Coronavirus (COVID-19) immigration guidance currently states that sponsors are not required to withdraw sponsorship and will not face compliance action if an unpaid absence from work is authorised and due to the exceptional circumstances of the COVID-19 outbreak.

The guidance was last updated on 27 February 2020 and does not explicitly mention absence due to the need to care for children during the closure of schools and other childcare providers, however our view is that absence for this reason is part of the exceptional circumstances of the outbreak and is covered.

Cutting salaries

If you are having to consider cutting salaries, this may have implications for Tier 2 workers. A drop in salary has to be reported on the sponsor management system within 10 working days. If a drop in salary takes a Tier 2 employee below one of the salary thresholds for Tier 2, such as the £30,000 general minimum for the visa route, then the usual position (with some exceptions such as for parental or long-term sick leave) is that they will have to make a new visa application. Furthermore, if you have to drop the salary for someone who was granted a Tier 2 General visa based on the fact that you did not need to run the resident labour market test as their salary was above £159,600, and the drop takes them below this salary level, then the current guidance requires the person to make a new visa application.

The Home Office has not yet issued specific guidance on this issue so please seek further advice from us if you have Tier 2 workers affected.

Furloughing your employees

The Government has announced the Coronavirus Job Retention Scheme to provide UK employers with support for paying wages of staff who would otherwise have been laid off (furloughed) as a result of COVID-19. The scheme was announced last Friday, 20 March. The Government has published a short overview for employers and a separate overview for employees, and we are expecting more information imminently.

In essence what this means is that the Government will reimburse up to 80% of the wage costs of employees who would have been laid off, up to a maximum of £2.5K per month. This means that the employees will continue to be paid but should not do any work for you.

A detailed analysis of the announced scheme can be found here.

As an employer there will be extra considerations for those employees who you intend to furlough who are working for you on a Tier 2 sponsored work visa. The scheme specifically states that the individuals who are furloughed must be those who you would have ordinarily laid off and who must no longer work for you during the time they are away from the business.

This causes issues for Tier 2 workers as there are currently restrictions on how long they can be placed on unpaid leave (which the Home Office indicate that they will be flexible on) and whether sponsorship can continue whilst they are furloughed as they will not be working with you.

The Home Office is yet to respond to these new developments and how they affect Tier 2 workers. Until such time as guidance is made available, we are not able to fully confirm that Tier 2 workers can be furloughed without this affecting their status in the UK. It is likely the Home Office will be flexible, and we will update in due course.

In the meantime, we would recommend you do the following:

• Report the change in status on the Sponsor Management System as a change in migrant circumstances
• Keep detailed records of what has occurred in case of future audits
• Contact us for further advice

Terminating the employment of Tier 2 workers

Unfortunately, you may be forced to consider terminating the employment of sponsored workers or making them redundant as a result of the economic downturn. In this circumstance, employers are required to notify the Home Office of the end of their employment by submitting a report on the Sponsor Management System within 10 working days of the employee’s last day of employment.

In normal circumstances, notifying the Home Office of a sponsored worker’s termination or redundancy will initiate the process of visa curtailment and, after they have left the UK, a 12-month ‘cooling-off period’.

The Home Office will then issue the worker with a ‘curtailment notice’ shortening their permission to stay in the UK to 60 calendar days and confirming the new visa expiry date. If there are fewer than 60 days remaining on the visa when the Home Office letter is issued, no change will be made to the expiry date. The curtailment will also apply to any dependent family members.

Between termination of employment and the new expiry date, the individual is permitted to seek alternative sponsorship or to submit an application for leave to remain in an alternative category for which they qualify. However, if they are not able to find a new sponsor the individual and any dependent family members will be expected to leave the UK or face enforced removal.

On leaving the UK, the 12-month cooling-off period will be triggered, and they will need to wait for this to end before they will be eligible to apply under the Tier 2 category once again. The cooling-off period can be bypassed only where the individual’s new guaranteed salary exceeds the high earner threshold of £159,600 or where their original Tier 2 Certificate of Sponsorship (CoS) was assigned for three months or less.

The Home Office has not provided any official guidance yet on departing from the normal requirements, however we anticipate more detailed guidance will be forthcoming. Please contact us for further advice should you have questions about the impact of termination on any sponsored employees.

Please see our guide for other immigration issues raised by Covid-19. If you have any queries regarding this please contact a member of the immigration team.

 

 

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus

Author(s)/Speaker(s): Joanna Hunt, Priya Gandhi,