Lewis Silkin – A guide to the immigration implications of COVID-19 for UK employers

It is too early to assess the full implications of the spread of COVID-19 for your foreign nationals working in the UK. This document sets out the main immigration law issues you need to be aware of at this stage so you can consider the implications for your business. We will endeavour to keep you updated as the situation develops.

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This document covers the issues listed below, from logistical considerations to Tier 2 and prevention of illegal working requirements:

1. Visa processing issues
2. Visa holders with imminent expiry dates
3. Moving immigration category
4. The cooling-off period
5. Indefinite leave to remain
6. Advice for Tier 2 sponsor licence holders
7. Implications for EEA/Swiss nationals
8. Right to work checks

1. Visa Processing Issues

Applying abroad

As a first step, if you or an employee are outside the UK and applying for a visa to come to the UK, you will need to check if the relevant application centres are open. You can check the latest advice from VFS here.

VFS have announced that priority visa applications for the UK will no longer be accepted by applicants applying from Japan, Indonesia, Australia, New Zealand, Fiji, Papua New Guinea, South Korea, Malaysia, Philippines, Singapore, Taiwan, Hong Kong and Brunei.

Some TLScontact Visa Application Centres are also closed, including the UK Visa Application Centre in Paris. Applicants already registered should receive a text message from TLScontact. Alternatively, check the address page of your preferred appointment location.

Any applicants intending to leave the UK to travel to countries such as Australia which are currently requiring all new arrivals to self-isolate should factor this in when they book their appointments at visa applications centres. They will need to clear the self-isolation period before they attend the appointment.

If an applicant has already been granted their visa but they are unable to travel during the 30-day window of their temporary entry clearance vignette they may need to attend a new appointment and apply for a new vignette before they travel. This may be waived for non-visas nationals (countries who do not appear on the visa national list), especially where their Biometric Residence Permit has already been issued and evidence of this can be provided on entry to the UK.

Applying from within the UK

Sopra Steria, the third party contractor that manages in-country biometric appointments, has not announced any closures of their UKVCAS visa processing centres yet. We understand however that some applicants are receiving emails informing them that appointments have been cancelled and rearranged for a later date. Sopra Steria has issued guidance for UK-based applicants with COVID-19 symptoms. Affected individuals should not attend their appointment. Instead, visa applicants must email a dedicated mailbox ‘admin.ukvas@soprasteria.com’ notifying Sopra Steria of the reason they cannot attend. Sopra Steria will refund the application fee and notify the Home Office. Individuals who, following their appointment at a UKVCAS centre, develop symptoms or are diagnosed with COVID-19 must inform Sopra Steria, by emailing the same mailbox.

Lewis Silkin will continue to be an alternative collection location for biometric residence permits for the applications we process. We will therefore continue to receive them and pass them on to the applicants while our office remains open. If there are any changes to this process we will inform you.

2. Visa holders with imminent expiry dates

The travel restrictions that have been imposed by the UK and other countries may result in visa holders being unable to leave the UK before their visa expires. The most recent Home Office immigration government guidance on the implications of coronovirus (COVID-19) released on 27 February 2020 only refers to Chinese nationals and residents of China. However, as COVID-19 has now spread to more than 140 countries, it is highly likely the guidance will be updated to include anyone affected, regardless of nationality.

The Home Office has acknowledged that due to travel restrictions and circumstances outside their control, individuals will face uncertainty in relation to the expiry date of their visas. However, the guidance only offers extensions to Chinese nationals who are currently in the UK with visas expiring between 24 January 2020 and 30 March 2020. These have been automatically extended to 31 March 2020. It is highly likely that this concession will be extended to other nationalities but we do not have confirmation of this yet.

Further guidance should be issued soon. Non-Chinese nationals in the UK who are normally resident in China can call the special Coronavirus Immigration Helpline and request an extension of their visa if it would otherwise expire between 24 January 2020 and 30 March 2020. Please do contact us if you or an employee is facing this issue.

3. Moving immigration category

The Home Office also announced in their COVID-19 guidance a concession to allow Chinese nationals currently on a Tier 2 (Intra-company Transfer) visa to switch in-country to a Tier 2 (General) visa. Normally such a switch would require a fresh visa application to be made from abroad.

It is to be hoped that the Home Office offers a similar concession for those in the UK in other immigration categories who want to move their status into another category but can only do so from outside of the UK, for example Tier 5 (Youth Mobility Scheme) visa holders who need to leave the UK to apply for a Tier 2 (General) visa. We are pursuing this with our Home Office contacts and will update with more news.

4. The Cooling-Off Period

Employers should consider carefully the situation for Tier 2 visa holders who are currently stranded abroad or requests from Tier 2 migrants who might wish to return to their home country or to travel to any other country to work remotely. If they are unable to return to the UK before their visa is due to expire, they may be caught by the cooling-off period which will prevent them returning to the UK on a Tier 2 visa for 12 months. The cooling-off period does not apply if they are applying for a Tier 2 General visa and their salary is above £159,600, if they are applying for a Tier 2 Intra Company Transfer visa and their salary is above £120,000 or if their original certificate of sponsorship was granted for three months or less.

We are hopeful the Home Office will offer some discretion but this is not yet confirmed. It is important that this is flagged with employees who could be affected. Please contact us for further guidance on this.

5. Indefinite Leave to Remain

Tier 2 (General) migrants who want to ultimately apply for Indefinite Leave to Remain in the UK are subject to a rule on absences in that they cannot exceed 180 days absence from the UK in any 12-month period. There are some exceptions to this requirement. It is likely that Tier 2 visa holders who accrue absences abroad as they are unable to travel due to COVID-19 will be able to argue that this amounts to an exceptional circumstance but the Home Office has not yet published any formal policy on the issue. It is likely that any policy would extend only to those with travel restrictions imposed by a national government rather than just personal hesitancy. We would recommend in this instance to keep records of flight tickets and other documentation to evidence the absence, which could be submitted at a later stage to support an ILR application.

6. Tier 2 sponsor licence holders

If your business holds a Tier 2 sponsor licence you have certain reporting and record keeping duties in relation to your employees who hold a Tier 2 visa. The spread of COVID-19 and the consequential restrictions on travel could have implications for your sponsor licence duties. For instance, delays to start dates and changes in work location normally need to be reported within 10 working days on the sponsor management system. The economic impact of COVID-19 may also mean that you are having to cut salaries or place employees on unpaid leave, which would be considered as changes in circumstances that need reporting if they relate to Tier 2 workers.
The Home Office has already confirmed in the available COVID-19 guidance that as the current situation is exceptional they will not take any compliance action against employees who are unable to attend their work due to the COVID-19 outbreak, or against sponsors who authorise absences and continue to sponsor employees despite absences for this reason.

This does provide you with some reassurance but is not a blanket guarantee. We would recommend that you seek advice from us if you are unsure of whether a course of action you are considering might impact on your sponsor licence duties. Failure to do so is serious as it can jeopardise your licence and the status of your sponsored workers.
Some particular issues to bear in mind:

Under the present Home Office guidance, a Tier 2 migrant can only delay their start date by up to 28 days once their visa has been granted. Due to current travel restrictions, you may have Tier 2 workers who will be unable to enter the UK to start work so their start date will have to be delayed. Any delay to their start date should be reported on the sponsor management system. If their start date does have to be delayed beyond 28 days, please contact us for further guidance.
Many Tier 2 workers will now be working from home as offices encourage remote working. A Tier 2 sponsor normally has to report a change in work location on the sponsor management system within 10 working days. The Home Office allows Tier 2 workers to work from home but we would consider that working from home temporarily in this circumstance, is not a change of work address requiring an SMS report. You should continue to report any other changes, for instance if a sponsored employee is working out of another office abroad. You should also ensure that you continue to be able to monitor attendance at work as part of your other on-going reporting and monitoring duties.
As a Tier 2 sponsor you must have a copy of the migrant’s passport and visa on file. We have set out below some further guidance on how to conduct right to work checks when employees are not able to attend work in person. Please ensure you have a scanned copy of the relevant documents on file and ensure you take a further copy of the original documents once these can be provided.
Normally a Tier 2 worker cannot take more than four weeks of unpaid leave a year, according to their normal working pattern. The Home Office guidance requires an employer to withdraw sponsorship if this occurs. The Home Office COVID-19 guidance currently states that sponsors do not need to withdraw sponsorship if this is due to COVID-19 if they consider ‘there are exceptional circumstances’. If you are having to put Tier 2 employees on periods of unpaid leave and are unsure if the circumstances are exceptional, please contact us for further advice.
If you are having to consider cutting salaries then this will 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 £30K minimum for the visa route, then they will have to make a new visa application. Please seek further advice in these circumstances.

7. Implications for EEA/Swiss nationals

As the UK has now left the European Union, nationals of the European Economic Area and Switzerland currently living in the UK have until the end of June 2021 to register their status under the EU Settlement Scheme for either pre-settled and settled status. They should continue to apply via the specially designed app available on both iPhone and android devices. Applications for the EU Settlement Scheme can also be made from abroad.
For an individual to qualify for settled status they must not be absent for over 6 months in any 12-month period. There is some discretion for absences up to 12 months for an ‘important reason’ such as sick leave. There is therefore good reason to believe that if you have an EEA/Swiss national abroad who cannot return to the UK there will be some discretion applied if their time abroad takes them beyond the 6-month limit. We would suggest though they take legal advice on this.
The UK is currently in a transition period which will last until the end of December 2020 when free movement arrangements will come to an end. There is a possibility that the transition period may be extended due to the disruption caused by COVID-19. We will provide further advice on this if there is any change to the relevant deadlines.

8. Right to work checks

A right to work check (RTW) will usually require an employee meeting with a new starter in person to check their documents. This may not now be possible. Under the Government’s current code of practice for RTW checks, it is possible to conduct fully compliant RTWs without having to meet with individuals face-to-face in one of two ways:

a) Remote RTW check for an individual holding a Biometric Residence Permit (BRP) or Pre-Settled/Settled Status under the EU Settlement Scheme

For anyone who has a BRP card or status under the EU Settlement Scheme, it is possible to conduct an online RTW. that the individual starts the process by following the prompts at https://www.gov.uk/prove-right-to-work.

First, the individual accesses their online immigration record via the link. They will need to follow the prompts to create a one-time use share code for an employer RTW. They should then provide you as their employer with the share code to use within 30 days of its creation. Please be aware that the Home Office will have a clear audit record of you using this code and exactly when you did so. Thus it is very important you do so correctly, prior to them actually starting work.

When you login with the code, it will show you the individual’s profile along with what employment they are allowed to undertake on their visa status. You should check the photograph depicted as well as any employment restrictions that are advised on their record. You should also view the person via a live video call e.g. skype or facetime, in order to confirm they are the person depicted, just as you would for a standard face to face RTW.

Please ensure that you keep a copy of this check. We would suggest a screenshot of the video call open concurrently with the online RTW screen open with their details. You can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly signed or marked by the person taking the check so that it is clear they are an authorised and appropriate employee of the company, taking the check on or before the individual’s first day of employment (in the usual way for a valid RTW).

b) Remote RTW check for everyone else

For those that do not hold a BRP or EU Settlement Scheme status as above, for example, British nationals, you can conduct the RTW by having them courier you their original current passport and then checking its validity etc in the usual way but via a video call. The same records must be retained i.e. certified dated copies either in hard copy or soft copy. The person conducting the check must see the original document to verify it against the video call of the person. You should continue to bear in mind that only those documents on the Home Office’s RTW checklist are ever acceptable. The list of these can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774286/Right_to_Work_Checklist.pdf

If these two options are not possible;

If you are not able to conduct the right to work checks as suggested above then you will not have a statutory excuse from a civil penalty if it were to later emerge that the employee does not have the right to work in the UK.

You will need to make a business decision on what level of risk you are willing to undertake to allow them to start work. One factor to consider is the amount of knowledge you have of their status, for instance if this is a Tier 2 sponsored worker then you will have a high degree of certainty of their status in the UK if you have assisted them with the application. The Home Office COVID-19 guidance does not currently cover right to work checks but it is likely the Home Office will be flexible in light of the circumstances.
We would recommend that you consult with us as it is wise to be cautious. The penalties for employing illegal workers are strict as you can be fined up to £20,000 per illegal worker. You will also need to keep any reasoning noted on files in case of Home Office audits in the future.

The situation is rapidly changing and this advice will be updated but it is important to consult with us before taking action and to ensure ongoing compliance and best practice during this uncertain period.

The UK Government Website for updates is GOV.UK – Coronavirus (COVID-19): immigration guidance

The Home Office has also a special “Coronavirus Immigration Helpline”:
Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)
Calls are free of charge.
Email: CIH@homeoffice.gov.uk

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,