In our recent webinar in November 2020, we shared an overview of the new system and how it is likely to work in practice. We cover sponsorship of skilled workers and look at some of the main work-related immigration routes, including the Skilled Worker, Intra-Company Transfer, Sporting and Creative, Global Talent and Graduate visas. Our webinar generated a wide-ranging set of questions from attendees, which we have collated and answered as a set of Q&As.

Text:

You can view the webinar in full and download a PDF version of the Q&As below.

In these Q&A’s, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. It excludes Irish nationals, who are already considered ‘settled’ in the UK. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS).

Please note the information provided on this page both in the webinar and Q&As states the position at this point in time and provides general guidance only. Please get in touch for any expert advice relating to particular circumstances.

 

 

We have an EEA national who started work in October 2020 but is working remotely in their home country due to COVID. They will be coming to the UK in January. Will we need to sponsor them under skilled worker visa and will there be issues with this given he has already started work?

If the person physically arrives in the UK by 31 December 2020, even if this is for a preliminary visit, then they would be eligible to apply under the EU Settlement Scheme.

If they arrive in January 2021 or later, then they would need immigration permission under the UK immigration system in order to live and work physically in the UK. This may mean they need to be sponsored under the Skilled Worker route if there is no alternative route applicable to them based on their individual circumstances.

There are no immigration issues with the person working physically in their home country before they arrive in the UK, however there may be other implications, eg from a tax or social security perspective. Our article on remote working abroad outlines some of the issues.

How do you evidence the ‘speaking English’ requirement for the Skilled Worker category?

The options for proving English language ability are expanded in comparison to the current arrangements for Tier 2 (General). The new provisions are set out in bold below.

The English language requirement for Skilled Worker can be met in one of the following ways:

• In a previous UK immigration application, the person has met the English language requirement at the level required for their Skilled Worker application (ie Level B1 on the Common European Framework of Reference for Languages) – this will be the case if the person has previously been granted permission under Tier 2 (General) for example.

• The person is a national of a majority English-speaking country, ie Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; Malta; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA (the person’s passport will be required as evidence)

• The person has a bachelor, masters or doctorate level degree awarded in the UK (the award certificate, official transcript or official letter from the awarding institution will be required as evidence)

• The person has a bachelor, masters or doctorate degree level qualification taught in a university or college in certain majority English language speaking countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; Malta; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation)

• The person has a bachelor, masters or doctorate degree level qualification that was taught or researched in English (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation)

• The person has one of the following qualifications that was awarded by an Ofqual regulated awarding body following education in the UK which I undertook while under the age of 18: GCSE; A-level; Scottish National Qualification at Level 4 or 5; Scottish Higher or Advanced Higher in English (language or literature) (the award certificate or official transcript will be required as evidence)

I know that resident labour market testing will not be required under the Skilled Worker route, but will there be any job posting requirements, or is this all going away, with the new process being just to find the right candidate, assess whether a visa is needed and apply for one ie through the Skilled Worker route?

There will not be any job posting requirements at all for the Skilled Worker route. The process you describe is correct, however please see further information on CoS allocation processes at question 22.

You mentioned we don’t need to see qualifications. How are we going to, for audit purposes, verify that the applicant is not lying for the PhD for instance?

The person will need to submit any qualification they are relying on for their application to the Home Office, along with a UK NARIC confirmation if the qualification was awarded outside the UK. UK NARIC launched new services on 1 November 2020 to specifically verify that a PhD awarded abroad is equivalent to a UK PhD, and (if relevant) that it meets the English language requirement. If the job requires a PhD, then you as the employer should follow your usual processes for qualification verification.

If the person is relying on a PhD to score points under the Skilled Worker route, then you as their sponsor must also provide a ‘credible explanation’ of how the qualification is relevant to the job. If relying on a PhD in a Science, Technology, Engineering or Mathematics (STEM) subject, then you must also provide a credible explanation that the qualification is considered by the sponsor to be in a STEM subject. 

Is the removal of the cooling off period for Tier 2 applicable for Tier 2 (ICT)?

There will still be a cooling off period for the Intra Company routes.

If the applicant is a ‘high earner’, ie their salary is £73,900 or more (based on working a maximum of 48 hours a week), then they cannot have cumulative periods of UK immigration permission on the Intra Company routes amounting to more than nine years in any ten-year period.

If the applicant is not a ‘high earner’, then they cannot have cumulative permission amounting to more than five years in any six-year period. 

The ONS SOC occupation coding tool should cover all occupation codes irrespective of whether they are eligible for the Skilled Worker route.

Currently the new eligible SOC codes are contained in Statement of Changes in Immigration Rules HC 813, Appendix Skilled Occupations, and will be published into the Immigration Rules on GOV.UK on 1 December 2020.

What happens if we’ve run out of Certificates of Sponsorship (CoS) and have currently requested additional allocation for visa extensions in the new year?

The Home Office will continue to consider requests for additional CoS allocations and once approved these will be available to the sponsor for assigning under the Skilled Worker route.

However, CoS for entry clearance applications will need to be allocated by the Home Office on a case-by-case basis, after the sponsor has submitted details of the specific job and salary details.

It is no longer a requirement for immigration purposes to demonstrate an inability to recruit a suitable resident worker. The Home Office has now moved to a system where the resident labour market is considered to be adequately protected through the salary thresholds Skilled Workers are required to meet, along with the application fees, compliance obligations and payment of the Immigration Skills Charge.

From a race discrimination perspective, an employer should only ask a candidate to demonstrate their right to work in the UK at a later stage of the recruitment process, eg at final interview or job offer stage. All candidates should have their right to work checked at the same stage. It is not permissible to only consider applications made by UK-based candidates for example.

You can make your employment offers conditional on the person having the right to work in the UK. If the person does not have the right to work, you can consider whether or not the person is eligible for sponsorship, and if so whether you wish to sponsor them.

If an employer does not have a COS, can they ask that only applicants with settled or pre settled status apply?

No, this would not be permissible. To avoid the risk of race discrimination, an employer should only ask a candidate to demonstrate their right to work in the UK at a later stage of the recruitment process as outlined in the answer to question 8 above.

What process should recruiters follow from 1 January 2021 for EEA applicants for roles in the UK. What questions, checks and processes should we put in place as I get a lot of applicants applying from Europe and it is not always clear they have status under the EU Settlement Scheme.

You should follow the same process for all candidates, irrespective of nationality, and only ask a candidate to demonstrate their right to work in the UK at the point where a job offer is made. The Home Office has confirmed that for EEA nationals starting work between 1 January 2021 and 30 June 2021, you can still accept their EEA passport as evidence of their right to work in the UK and will not be required to undertake retrospective checks.

The Home Office is expected to release an update to An employer’s guide to right to work checks during the first half of next year, which will provide details of what right to work checks will be required for EEA nationals from 1 July 2021.

If people can continue to apply for settled or pre-settled status until June 2021 (as opposed to 31 Dec 2020), when should employers start performing new RTW checks on EU nationals and what are these?

See answer to question 10 above.

Is there anything we need to take into consideration for travel on inter-company business from 1 January 2021, ie if a meeting was being hosted in the UK and we wanted people from across Europe to attend?

You will need to assess whether the proposed activities fall within those allowed for visitors, or if a visa allowing work is required. It is the nature of the activities rather than the length of presence in the UK that is relevant when making this assessment.

What will be the costs of the new Skilled Worker route?

The Home Office confirmed in the webinar that fees will not differ from those under the current system immediately, however immigration fees are subject to periodic change. The below outline is based on the current Tier 2 (General) fees.

Skilled Worker Sponsor licence process:

• Application fee – £1,476/£536 (depending on the size of sponsor)

• Priority fee (available from 12 November 2020, not mandatory) – £500

Immigration application for a five-year Skilled Worker visa:

• Application fee – £1,220 from abroad or £1,408 from within the UK

• Biometric enrolment fee – £19.20

• Certificate of Sponsorship fee – £199

• Immigration Health Surcharge – £3,120

• Immigration Skills Charge – £5,000/£1,820 (depending on the size of sponsor)

• Priority fees (not mandatory) – £300/£500

If an EEA national moves to the UK in March 2021, they can still start a new job then and apply to the EU Settlement Scheme? No need for a sponsored visa?

If the person is taking up residence in the UK for the first time on or after 11 pm on 31 December 2020, then they would not be eligible under the EU Settlement Scheme and would be required to apply for permission under the main UK immigration system. Whether they will require sponsorship will depend on their personal circumstances, ie whether they qualify for a non-sponsored visa.

Will someone be able to switch from Tier 2 ICT to the Skilled Worker category without needing to complete the cooling off period? 

Yes, this will be allowed. In-country switching to the Skilled Worker route will however not be allowed for people holding the following UK immigration permission:

• Visitor

• Short-term student

• Parent of a Child Student

• Seasonal Worker

• Domestic Worker in a Private Household

• Permission granted outside the Immigration Rules

It would be really useful to have an example recruitment timeline based on the changes that have been made to the CoS system; also, what are cost of CoS going to be; can you reconfirm there is no cap i.e. we will be able to issue as many as we want? Finally, how will new recruits be able to evidence the English language requirements (wondering if this elongates recruitment timelines)

In comparison to the current Tier 2 (General) recruitment timeline, the timeline will be reduced by around six weeks where resident labour market testing would have been applicable for Tier 2 (General). Sponsors will need to request a ‘defined’ CoS (dCoS) to be allocated for entry clearance applicants, however the Home Office indicated the processing time for this in most cases should be around one working day.

CoS will still be £199 initially.

Sponsors will need to request CoS allocations from the Home Office for in-country applications and will need to justify the need for this, as is currently the case. dCoS will need to be requested on a case-by-case basis.

For information on the English language requirements, see the answer to question 2.

Do people who are already sponsored on a Tier 2 visa need to switch or can they remain on their current visa and switch when expiring?

People who currently hold permission under Tier 2 will continue to have valid permission in this category. They will be able to extend their permission under the Skilled Worker category before expiry.

Please note that the going rates for further permission and settlement under the Skilled Worker route are not the same as they currently are for Tier 2 (General). For some occupations the rates have increased. It will therefore be important to assess the eligibility of Tier 2 (General) migrants for extension and settlement in good time to verify that they will qualify.

Does an employee working in the EU who is visiting the UK subsidiary i.e. for 2 weeks and will contribute to the economic value of the UK subsidiary require a visa or any type of work permit?  They will be doing more than just attending meetings.

If the person is an EEA national who will be entering the UK before 11 pm on 31 December 2020, then free movement arrangements will still apply. If the person enters after this time and they are not eligible to apply under the EU Settlement Scheme before 30 June 2021, then if their activities will go beyond what is allowed for business visitors, then they would need to obtain a UK visa with work permission that authorises them to do the proposed work activities.

We have an employee currently on a Tier 5 visa who will become an EU citizen in the next month. Will she need to re-enter the UK as an EU citizen by 31 December 2020?

The Rules for the EU Settlement Scheme do not require an EEA national to have entered the UK in that capacity, all that is required is that the person is an EEA national by 11 pm on 31 December 2020 and to be residing in the UK by this time. So, assuming your employee is granted her citizenship by 11 pm on 31 December 2020, she should aim to obtain proof of her citizenship as soon as possible and ensure she applies for pre-status under the EU Settlement Scheme by 30 June 2021.

Am I right in understanding that we do not need to check that an employee from the EU who is already employed by us has applied for and been granted settled status? Is this ever, or just before June 2021?

The Home Office has confirmed in the webinar that the present right to work arrangements will remain in place until 30 June 2021. Employers will not be required to do retrospective right to work checks on employees hired on or before 30 June 2021.

Aside from the civil penalty regime for illegal working, there is however a separate criminal offence for knowing, or having reasonable cause to believe that you are employing a person who does not have the right to work in the UK. The Home Office is expected to provide clarification in the first half of next year on what the consequences for an employer will be if it comes to light that an EEA national they employ does not in fact have the right to work in the UK, either because they entered after 31 January 2021 without work permission, or failed to apply on time for the EU Settlement Scheme. 

See the answers to questions 8 and 9.

What are the transitional arrangements where the process has started under the old system but the worker will be starting work in the new system?

Individuals who make a Tier 2 (General) application before 9 am on 1 December 2020 will have their application processed under the current arrangements and will be issued with a visa as a Tier 2 (General) migrant. For the purposes of extension and settlement applications, Tier 2 (General) migrants will be considered under the new Rules to fall within the definition of ‘Skilled Worker’.

Applications submitted after this will be processed under the new Skilled Worker Rules.

In the webinar the Home Office confirmed the following details:

• Tier 2 (General) sponsors will automatically become Skilled Worker sponsors from 1 December 2020 and their unrestricted CoS allocation will also be transferred and available for sponsoring in-country Skilled Worker migrants

• Sponsors will be able to assign CoS from their allocation for in-country Skilled Worker applications from 1 December 2020

• Sponsors will be asked to provide additional PAYE information in relation to Tier 2 (General) unrestricted CoS that have been assigned but not yet used in support of a visa application

• For entry clearance applications made under the Skilled Worker route, a sponsor will have to submit a request to the Home Office on a case-by-case basis for a ‘defined CoS’ (dCoS) to be allocated, which will include the specific job and salary details of the role the migrant will fill

• The dCoS process is anticipated to take around a working day in most cases, and is intended to allow the Home Office to do a sense check on what roles sponsors are intending to fill with new migrants coming to the UK from abroad

• Sponsors who have a live restricted CoS for Tier 2 (General) will have this converted to a dCoS automatically

• Any outstanding requests for rCoS on 30 November 2020 will be converted to dCoS

Related Item(s): BREXIT, Immigration, Immigration & Global Mobility

Author(s)/Speaker(s): Naomi Hanrahan-Soar, Stephen OFlaherty,

Attachment: Lewis Silkin The UKs new immigration system Q As Nov 2020

In our recent webinar in November 2020, we shared an overview of the new system and how it is likely to work in practice. We cover sponsorship of skilled workers and look at some of the main work-related immigration routes, including the Skilled Worker, Intra-Company Transfer, Sporting and Creative, Global Talent and Graduate visas. Our webinar generated a wide-ranging set of questions from attendees, which we have collated and answered as a set of Q&As.

Text:

You can view the webinar in full and download a PDF version of the Q&As below.

In these Q&A’s, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. It excludes Irish nationals, who are already considered ‘settled’ in the UK. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS).

Please note the information provided on this page both in the webinar and Q&As states the position at this point in time and provides general guidance only. Please get in touch for any expert advice relating to particular circumstances.

 

 

We have an EEA national who started work in October 2020 but is working remotely in their home country due to COVID. They will be coming to the UK in January. Will we need to sponsor them under skilled worker visa and will there be issues with this given he has already started work?

If the person physically arrives in the UK by 31 December 2020, even if this is for a preliminary visit, then they would be eligible to apply under the EU Settlement Scheme.

If they arrive in January 2021 or later, then they would need immigration permission under the UK immigration system in order to live and work physically in the UK. This may mean they need to be sponsored under the Skilled Worker route if there is no alternative route applicable to them based on their individual circumstances.

There are no immigration issues with the person working physically in their home country before they arrive in the UK, however there may be other implications, eg from a tax or social security perspective. Our article on remote working abroad outlines some of the issues.

How do you evidence the ‘speaking English’ requirement for the Skilled Worker category?

The options for proving English language ability are expanded in comparison to the current arrangements for Tier 2 (General). The new provisions are set out in bold below.

The English language requirement for Skilled Worker can be met in one of the following ways:

• In a previous UK immigration application, the person has met the English language requirement at the level required for their Skilled Worker application (ie Level B1 on the Common European Framework of Reference for Languages) – this will be the case if the person has previously been granted permission under Tier 2 (General) for example.

• The person is a national of a majority English-speaking country, ie Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; Malta; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA (the person’s passport will be required as evidence)

• The person has a bachelor, masters or doctorate level degree awarded in the UK (the award certificate, official transcript or official letter from the awarding institution will be required as evidence)

• The person has a bachelor, masters or doctorate degree level qualification taught in a university or college in certain majority English language speaking countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; Malta; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation)

• The person has a bachelor, masters or doctorate degree level qualification that was taught or researched in English (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation)

• The person has one of the following qualifications that was awarded by an Ofqual regulated awarding body following education in the UK which I undertook while under the age of 18: GCSE; A-level; Scottish National Qualification at Level 4 or 5; Scottish Higher or Advanced Higher in English (language or literature) (the award certificate or official transcript will be required as evidence)

I know that resident labour market testing will not be required under the Skilled Worker route, but will there be any job posting requirements, or is this all going away, with the new process being just to find the right candidate, assess whether a visa is needed and apply for one ie through the Skilled Worker route?

There will not be any job posting requirements at all for the Skilled Worker route. The process you describe is correct, however please see further information on CoS allocation processes at question 22.

You mentioned we don’t need to see qualifications. How are we going to, for audit purposes, verify that the applicant is not lying for the PhD for instance?

The person will need to submit any qualification they are relying on for their application to the Home Office, along with a UK NARIC confirmation if the qualification was awarded outside the UK. UK NARIC launched new services on 1 November 2020 to specifically verify that a PhD awarded abroad is equivalent to a UK PhD, and (if relevant) that it meets the English language requirement. If the job requires a PhD, then you as the employer should follow your usual processes for qualification verification.

If the person is relying on a PhD to score points under the Skilled Worker route, then you as their sponsor must also provide a ‘credible explanation’ of how the qualification is relevant to the job. If relying on a PhD in a Science, Technology, Engineering or Mathematics (STEM) subject, then you must also provide a credible explanation that the qualification is considered by the sponsor to be in a STEM subject. 

Is the removal of the cooling off period for Tier 2 applicable for Tier 2 (ICT)?

There will still be a cooling off period for the Intra Company routes.

If the applicant is a ‘high earner’, ie their salary is £73,900 or more (based on working a maximum of 48 hours a week), then they cannot have cumulative periods of UK immigration permission on the Intra Company routes amounting to more than nine years in any ten-year period.

If the applicant is not a ‘high earner’, then they cannot have cumulative permission amounting to more than five years in any six-year period. 

The ONS SOC occupation coding tool should cover all occupation codes irrespective of whether they are eligible for the Skilled Worker route.

Currently the new eligible SOC codes are contained in Statement of Changes in Immigration Rules HC 813, Appendix Skilled Occupations, and will be published into the Immigration Rules on GOV.UK on 1 December 2020.

What happens if we’ve run out of Certificates of Sponsorship (CoS) and have currently requested additional allocation for visa extensions in the new year?

The Home Office will continue to consider requests for additional CoS allocations and once approved these will be available to the sponsor for assigning under the Skilled Worker route.

However, CoS for entry clearance applications will need to be allocated by the Home Office on a case-by-case basis, after the sponsor has submitted details of the specific job and salary details.

It is no longer a requirement for immigration purposes to demonstrate an inability to recruit a suitable resident worker. The Home Office has now moved to a system where the resident labour market is considered to be adequately protected through the salary thresholds Skilled Workers are required to meet, along with the application fees, compliance obligations and payment of the Immigration Skills Charge.

From a race discrimination perspective, an employer should only ask a candidate to demonstrate their right to work in the UK at a later stage of the recruitment process, eg at final interview or job offer stage. All candidates should have their right to work checked at the same stage. It is not permissible to only consider applications made by UK-based candidates for example.

You can make your employment offers conditional on the person having the right to work in the UK. If the person does not have the right to work, you can consider whether or not the person is eligible for sponsorship, and if so whether you wish to sponsor them.

If an employer does not have a COS, can they ask that only applicants with settled or pre settled status apply?

No, this would not be permissible. To avoid the risk of race discrimination, an employer should only ask a candidate to demonstrate their right to work in the UK at a later stage of the recruitment process as outlined in the answer to question 8 above.

What process should recruiters follow from 1 January 2021 for EEA applicants for roles in the UK. What questions, checks and processes should we put in place as I get a lot of applicants applying from Europe and it is not always clear they have status under the EU Settlement Scheme.

You should follow the same process for all candidates, irrespective of nationality, and only ask a candidate to demonstrate their right to work in the UK at the point where a job offer is made. The Home Office has confirmed that for EEA nationals starting work between 1 January 2021 and 30 June 2021, you can still accept their EEA passport as evidence of their right to work in the UK and will not be required to undertake retrospective checks.

The Home Office is expected to release an update to An employer’s guide to right to work checks during the first half of next year, which will provide details of what right to work checks will be required for EEA nationals from 1 July 2021.

If people can continue to apply for settled or pre-settled status until June 2021 (as opposed to 31 Dec 2020), when should employers start performing new RTW checks on EU nationals and what are these?

See answer to question 10 above.

Is there anything we need to take into consideration for travel on inter-company business from 1 January 2021, ie if a meeting was being hosted in the UK and we wanted people from across Europe to attend?

You will need to assess whether the proposed activities fall within those allowed for visitors, or if a visa allowing work is required. It is the nature of the activities rather than the length of presence in the UK that is relevant when making this assessment.

What will be the costs of the new Skilled Worker route?

The Home Office confirmed in the webinar that fees will not differ from those under the current system immediately, however immigration fees are subject to periodic change. The below outline is based on the current Tier 2 (General) fees.

Skilled Worker Sponsor licence process:

• Application fee – £1,476/£536 (depending on the size of sponsor)

• Priority fee (available from 12 November 2020, not mandatory) – £500

Immigration application for a five-year Skilled Worker visa:

• Application fee – £1,220 from abroad or £1,408 from within the UK

• Biometric enrolment fee – £19.20

• Certificate of Sponsorship fee – £199

• Immigration Health Surcharge – £3,120

• Immigration Skills Charge – £5,000/£1,820 (depending on the size of sponsor)

• Priority fees (not mandatory) – £300/£500

If an EEA national moves to the UK in March 2021, they can still start a new job then and apply to the EU Settlement Scheme? No need for a sponsored visa?

If the person is taking up residence in the UK for the first time on or after 11 pm on 31 December 2020, then they would not be eligible under the EU Settlement Scheme and would be required to apply for permission under the main UK immigration system. Whether they will require sponsorship will depend on their personal circumstances, ie whether they qualify for a non-sponsored visa.

Will someone be able to switch from Tier 2 ICT to the Skilled Worker category without needing to complete the cooling off period? 

Yes, this will be allowed. In-country switching to the Skilled Worker route will however not be allowed for people holding the following UK immigration permission:

• Visitor

• Short-term student

• Parent of a Child Student

• Seasonal Worker

• Domestic Worker in a Private Household

• Permission granted outside the Immigration Rules

It would be really useful to have an example recruitment timeline based on the changes that have been made to the CoS system; also, what are cost of CoS going to be; can you reconfirm there is no cap i.e. we will be able to issue as many as we want? Finally, how will new recruits be able to evidence the English language requirements (wondering if this elongates recruitment timelines)

In comparison to the current Tier 2 (General) recruitment timeline, the timeline will be reduced by around six weeks where resident labour market testing would have been applicable for Tier 2 (General). Sponsors will need to request a ‘defined’ CoS (dCoS) to be allocated for entry clearance applicants, however the Home Office indicated the processing time for this in most cases should be around one working day.

CoS will still be £199 initially.

Sponsors will need to request CoS allocations from the Home Office for in-country applications and will need to justify the need for this, as is currently the case. dCoS will need to be requested on a case-by-case basis.

For information on the English language requirements, see the answer to question 2.

Do people who are already sponsored on a Tier 2 visa need to switch or can they remain on their current visa and switch when expiring?

People who currently hold permission under Tier 2 will continue to have valid permission in this category. They will be able to extend their permission under the Skilled Worker category before expiry.

Please note that the going rates for further permission and settlement under the Skilled Worker route are not the same as they currently are for Tier 2 (General). For some occupations the rates have increased. It will therefore be important to assess the eligibility of Tier 2 (General) migrants for extension and settlement in good time to verify that they will qualify.

Does an employee working in the EU who is visiting the UK subsidiary i.e. for 2 weeks and will contribute to the economic value of the UK subsidiary require a visa or any type of work permit?  They will be doing more than just attending meetings.

If the person is an EEA national who will be entering the UK before 11 pm on 31 December 2020, then free movement arrangements will still apply. If the person enters after this time and they are not eligible to apply under the EU Settlement Scheme before 30 June 2021, then if their activities will go beyond what is allowed for business visitors, then they would need to obtain a UK visa with work permission that authorises them to do the proposed work activities.

We have an employee currently on a Tier 5 visa who will become an EU citizen in the next month. Will she need to re-enter the UK as an EU citizen by 31 December 2020?

The Rules for the EU Settlement Scheme do not require an EEA national to have entered the UK in that capacity, all that is required is that the person is an EEA national by 11 pm on 31 December 2020 and to be residing in the UK by this time. So, assuming your employee is granted her citizenship by 11 pm on 31 December 2020, she should aim to obtain proof of her citizenship as soon as possible and ensure she applies for pre-status under the EU Settlement Scheme by 30 June 2021.

Am I right in understanding that we do not need to check that an employee from the EU who is already employed by us has applied for and been granted settled status? Is this ever, or just before June 2021?

The Home Office has confirmed in the webinar that the present right to work arrangements will remain in place until 30 June 2021. Employers will not be required to do retrospective right to work checks on employees hired on or before 30 June 2021.

Aside from the civil penalty regime for illegal working, there is however a separate criminal offence for knowing, or having reasonable cause to believe that you are employing a person who does not have the right to work in the UK. The Home Office is expected to provide clarification in the first half of next year on what the consequences for an employer will be if it comes to light that an EEA national they employ does not in fact have the right to work in the UK, either because they entered after 31 January 2021 without work permission, or failed to apply on time for the EU Settlement Scheme. 

See the answers to questions 8 and 9.

What are the transitional arrangements where the process has started under the old system but the worker will be starting work in the new system?

Individuals who make a Tier 2 (General) application before 9 am on 1 December 2020 will have their application processed under the current arrangements and will be issued with a visa as a Tier 2 (General) migrant. For the purposes of extension and settlement applications, Tier 2 (General) migrants will be considered under the new Rules to fall within the definition of ‘Skilled Worker’.

Applications submitted after this will be processed under the new Skilled Worker Rules.

In the webinar the Home Office confirmed the following details:

• Tier 2 (General) sponsors will automatically become Skilled Worker sponsors from 1 December 2020 and their unrestricted CoS allocation will also be transferred and available for sponsoring in-country Skilled Worker migrants

• Sponsors will be able to assign CoS from their allocation for in-country Skilled Worker applications from 1 December 2020

• Sponsors will be asked to provide additional PAYE information in relation to Tier 2 (General) unrestricted CoS that have been assigned but not yet used in support of a visa application

• For entry clearance applications made under the Skilled Worker route, a sponsor will have to submit a request to the Home Office on a case-by-case basis for a ‘defined CoS’ (dCoS) to be allocated, which will include the specific job and salary details of the role the migrant will fill

• The dCoS process is anticipated to take around a working day in most cases, and is intended to allow the Home Office to do a sense check on what roles sponsors are intending to fill with new migrants coming to the UK from abroad

• Sponsors who have a live restricted CoS for Tier 2 (General) will have this converted to a dCoS automatically

• Any outstanding requests for rCoS on 30 November 2020 will be converted to dCoS

Related Item(s): BREXIT, Immigration, Immigration & Global Mobility

Author(s)/Speaker(s): Naomi Hanrahan-Soar, Stephen OFlaherty,

Attachment: Lewis Silkin The UKs new immigration system Q As Nov 2020

The guidance replaces the Tier 2 and 5 sponsor guidance. It covers the Skilled Worker, Intra-Company Transfer and Temporary Worker routes and is intended to provide information on sponsorship when these routes are launched from 1 December 2020.

Text:

Existing Tier 2 and 5 sponsors will be automatically approved as sponsors in the equivalent new route, with their sponsor licence expiry and Certificate of Sponsorship (CoS) allocation remaining as currently.

As there will be no uplift to CoS allocations, we anticipate that many sponsors may wish to make an in-year request for an additional CoS allocation. This may be needed to cover any EEA nationals, EEA national family members and any workers who may wish to switch into one of the new routes in-country before the end of the financial year, for example Tier 2 Intra-Company Transfer or Tier 5 Youth Mobility Scheme migrants who wish to switch into the Skilled Worker route.

Structure of the new guidance

The guidance has initially been expanded from one main document into a series of five documents as follows:

• Workers and Temporary Workers – guidance for sponsors part 1: apply for a licence

• Workers and Temporary Workers – guidance for sponsors part 2: sponsor a worker – general information

• Workers and Temporary Workers – guidance for sponsors part 3: sponsor duties and compliance

• Workers and Temporary Workers – sponsor a Skilled Worker

• Workers and Temporary Workers – sponsor an Intra-Company worker

This does not include detailed guidance on each of the Temporary Work routes, so further documents are expected in the near future.

Skilled Workers – defined and undefined Certificates of Sponsorship

For the Skilled Worker category, rather than there being unrestricted and restricted Certificate of Sponsorship (CoS) categories, there will now be undefined and defined CoS. Undefined CoS are for in-country applications and defined CoS are for applicants who will be making an entry clearance application from abroad.

Undefined CoS may be assigned by a sponsor immediately provided they have an available CoS allocation. Defined CoS must be requested and allocated by the Home Office on a case-by-case basis after a checking process, which should be within one working day unless the request is flagged for further checks.

Although there will be no hard numerical cap on defined CoS, the vetting process is intended to allow the Home Office to closely monitor the profile of jobs and salary levels being used to enable skilled workers from abroad to access the UK labour market, and to intervene prior to visa application stage if they identify any concerning trends.

Transitional arrangements for requested or unused Tier 2 (General) CoS

These are set out in Annex SK1, towards the end of the ‘Sponsor a Skilled Worker guidance. In general terms, the guidance confirms:

• Requested restricted CoS will be decided on 28 November 2020 and if successful, added to the sponsor’s undefined CoS allocation where the request is for Tier 4 students or student dependants switching to Skilled Worker, or defined CoS for all other applicants. These must then be upgraded by adding a sponsor note to the sponsor management system (SMS).

• Tier 2 (General) restricted CoS that have already been allocated can still be assigned from 1 December 2020 provided they were allocated less than three months ago are ‘upgraded’ by adding a sponsor note to the SMS.

• Tier 2 (General) CoS assigned before 1 December 2020 can still be used to support a Skilled Worker application provided they were assigned less than three months ago and are ‘upgraded’ by adding a sponsor note to the SMS.

The required sponsor note must include:

• The employer PAYE scheme reference number the worker will be paid under, or an explanation of why they will not be paid via PAYE

• That the worker’s salary will meet the new salary rules for the Skilled Worker category

• Relevant explanations if the worker will be relying on tradeable points scoring under the Skilled Worker route, eg for having a relevant PhD, STEM PhD or meeting the criteria for ‘new entrants’ to the labour market

Online submission of new sponsor licence application documents as standard

Appendix A to the sponsor guidance, which covers the documentation requirements for making a sponsor application, has also been updated. This now refers to the new routes as well as confirming that sponsor licence applications and supporting documentation can be submitted electronically, with the Home Office reserving the right to request originals or certified copies. This does not amount to an operational change as electronic submission has been acceptable throughout the COVID-19 pandemic, however the implementation of this on a permanent basis is a welcome development.

If you would like assistance with applying for or reviewing a sponsor licence, or with sponsoring a worker under the new routes, please contact a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

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

The guidance replaces the Tier 2 and 5 sponsor guidance. It covers the Skilled Worker, Intra-Company Transfer and Temporary Worker routes and is intended to provide information on sponsorship when these routes are launched from 1 December 2020.

Text:

Existing Tier 2 and 5 sponsors will be automatically approved as sponsors in the equivalent new route, with their sponsor licence expiry and Certificate of Sponsorship (CoS) allocation remaining as currently.

As there will be no uplift to CoS allocations, we anticipate that many sponsors may wish to make an in-year request for an additional CoS allocation. This may be needed to cover any EEA nationals, EEA national family members and any workers who may wish to switch into one of the new routes in-country before the end of the financial year, for example Tier 2 Intra-Company Transfer or Tier 5 Youth Mobility Scheme migrants who wish to switch into the Skilled Worker route.

Structure of the new guidance

The guidance has initially been expanded from one main document into a series of five documents as follows:

• Workers and Temporary Workers – guidance for sponsors part 1: apply for a licence

• Workers and Temporary Workers – guidance for sponsors part 2: sponsor a worker – general information

• Workers and Temporary Workers – guidance for sponsors part 3: sponsor duties and compliance

• Workers and Temporary Workers – sponsor a Skilled Worker

• Workers and Temporary Workers – sponsor an Intra-Company worker

This does not include detailed guidance on each of the Temporary Work routes, so further documents are expected in the near future.

Skilled Workers – defined and undefined Certificates of Sponsorship

For the Skilled Worker category, rather than there being unrestricted and restricted Certificate of Sponsorship (CoS) categories, there will now be undefined and defined CoS. Undefined CoS are for in-country applications and defined CoS are for applicants who will be making an entry clearance application from abroad.

Undefined CoS may be assigned by a sponsor immediately provided they have an available CoS allocation. Defined CoS must be requested and allocated by the Home Office on a case-by-case basis after a checking process, which should be within one working day unless the request is flagged for further checks.

Although there will be no hard numerical cap on defined CoS, the vetting process is intended to allow the Home Office to closely monitor the profile of jobs and salary levels being used to enable skilled workers from abroad to access the UK labour market, and to intervene prior to visa application stage if they identify any concerning trends.

Transitional arrangements for requested or unused Tier 2 (General) CoS

These are set out in Annex SK1, towards the end of the ‘Sponsor a Skilled Worker guidance. In general terms, the guidance confirms:

• Requested restricted CoS will be decided on 28 November 2020 and if successful, added to the sponsor’s undefined CoS allocation where the request is for Tier 4 students or student dependants switching to Skilled Worker, or defined CoS for all other applicants. These must then be upgraded by adding a sponsor note to the sponsor management system (SMS).

• Tier 2 (General) restricted CoS that have already been allocated can still be assigned from 1 December 2020 provided they were allocated less than three months ago are ‘upgraded’ by adding a sponsor note to the SMS.

• Tier 2 (General) CoS assigned before 1 December 2020 can still be used to support a Skilled Worker application provided they were assigned less than three months ago and are ‘upgraded’ by adding a sponsor note to the SMS.

The required sponsor note must include:

• The employer PAYE scheme reference number the worker will be paid under, or an explanation of why they will not be paid via PAYE

• That the worker’s salary will meet the new salary rules for the Skilled Worker category

• Relevant explanations if the worker will be relying on tradeable points scoring under the Skilled Worker route, eg for having a relevant PhD, STEM PhD or meeting the criteria for ‘new entrants’ to the labour market

Online submission of new sponsor licence application documents as standard

Appendix A to the sponsor guidance, which covers the documentation requirements for making a sponsor application, has also been updated. This now refers to the new routes as well as confirming that sponsor licence applications and supporting documentation can be submitted electronically, with the Home Office reserving the right to request originals or certified copies. This does not amount to an operational change as electronic submission has been acceptable throughout the COVID-19 pandemic, however the implementation of this on a permanent basis is a welcome development.

If you would like assistance with applying for or reviewing a sponsor licence, or with sponsoring a worker under the new routes, please contact a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

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

From 31 January 2021, two new immigration routes will be introduced for British National (Overseas) (‘BNO’) citizens and for their adult children, who are born on or after 1 July 1997. These two routes are BN(O) Status Holder and BN(O) Household Member.

Text:

The detailed Immigration Rules for these routes were published by the Home Office on 22 October 2020.

Who can apply under the BN(O) Status Holder route?

Under the new Rules, any BNO citizen who is ordinarily resident in Hong Kong or in the UK (plus Jersey, Guernsey and the Isle of Man) is eligible to apply under this route. It is not necessary for them to hold a valid BNO citizen passport, as long as they qualify for BNO citizenship. Usually this includes people born in Hong Kong before 1 July 1997 who registered for BNO status (though note that there may be some exceptions depending on individual circumstances).

Some family members of a BNO citizen meeting the above criteria can also apply at the same time as the main applicant. The following categories of family members can apply as dependants:

• Spouses and unmarried partners who are in a genuine and subsisting relationship with the BNO citizen. Unmarried partners must have also lived with the BNO citizen for at least two years in a relationship akin to marriage.

• Children and grandchildren under the age of 18, who normally live with the BNO citizen. Both parents of the child, or grandparents of a grandchild must be applying at the same time. Alternatively, if a child’s or grandchild’s application is being accompanied by only one parent’s or grandparent’s application, that parent or grandparent must evidence sole responsibility for the child.

• An adult dependent relative who is over the age of 18 and is the parent, grandparent, brother, sister, son or daughter of the BNO citizen. In addition, adult relatives must be dependent on the BNO citizen because of their age, illness or disability, form part of the same household and be unable to obtain the required level of help in Hong Kong.

Who can apply under the BN(O) Household Member route?

Adult children of a BNO citizen over the age of 18 and born on or after 1 July 1997 can apply under this route. They must normally live with their BNO citizen parent.

Main applicants under the BN(O) Household Member route can have dependants accompany them to the UK. However, this includes partners and minor children only (not grandchildren and adult dependent relatives).

Eligibility criteria for all applicants

Residence in Hong Kong or the UK

Those applying for entry clearance must be ordinarily resident in Hong Kong. Individuals who are already in the UK must be ordinarily resident in the UK. There is no minimum period of residence or maximum limit on absences to comply with. Applicants will need to show that they live in the UK or Hong Kong on a regular basis and provide evidence confirming this, eg utility bills, tenancy or mortgage agreement, identity card, a letter from an employer, doctor or government agency, school reports, tax documentation or a polling card.

Financial requirement

Applicants will need to show that they can maintain and accommodate themselves and dependants for at least six months. They will need to provide bank statements showing sufficient funds and evidence confirming accommodation arrangements, eg a tenancy agreement, letter from landlord or a family member.

Applicants who have been residing in the UK for more than 12 months are not required to provide the above evidence and will automatically meet the financial requirement.

Tuberculosis testing

Applicants resident in Hong Kong will need to provide TB test certificate from a Hong-Kong based Hong Kong-based approved clinic. UK applicants with leave granted for six months or less or who obtained leave to enter at the border will also need to provide a TB test certificate from a UK-based UK-based approved clinic.

Other requirements

Applicants must not have any serious criminal convictions or adverse immigration history, eg previously deceiving immigration authorities.

It is not necessary for applicants to speak English (and to meet the English language requirement) to be granted limited leave under these routes. However, those who wish to apply for settlement in the future must meet the English language and Life in the UK test requirements.

Application process

The application process for both routes will be launched on 31 January 2021. Before this date, is also possible for BNO citizens and their dependants who travel to the UK to be admitted outside the Immigration Rules on arrival and for those whose existing leave expires before the scheme launches to apply for further stay outside the Immigration Rules. In each case applicants must provide evidence of meeting all the eligibility criteria above.

The Home Office intends to release an ID check app for use in the application process. Applicants with biometric passports can use the app to submit their application. Alternatively, applications can be made using an online form. Applicants will then be required to enrol their biometric information (fingerprints and a digital photo) at a visa application centre.

Visa duration and format

It is possible to apply either for a 30-month visa or a five-year visa. It may be convenient to apply for a five-year visa to avoid the need to renew it in the future, however this will involve greater upfront cost. Successful applicants will receive a digital visa.

Settlement and British citizenship

After five years continuous residence in the UK, main applicants and their dependants may become eligible for settlement, otherwise called indefinite leave to remain (ILR) or. permanent residence. They will need to meet all the usual settlement requirements, which for adults includes passing the Life in the UK test (unless exempt) and not being absent from the UK for more than 180 days in any rolling 12-month period during the five years.

For most applicants, eligibility for British citizenship will become possible a year after settlement has been granted. It will be possible immediately after the grant of settlement for those with a British spouse or civil partner, or for children under 18 who are born in the UK. Naturalisation as a British citizen involves different residence requirements of no more than 450 days absence over the five years before the application (or no more than 270 days over a three year qualifying period for those with a British spouse or civil partner), and no more than 90 days absence in the final 12 months.

Cost

The Home Office application fee will be £180 for a 30-month visa or £250 for a five-year visa.

Applicants will also be required to pay the Immigration Health Surcharge, which is currently £624 per year per adult and £470 per year per child. There may also be additional fees for appointments and for the priority service to expedite application processing.

Visa conditions

Main applicants and their dependants will be permitted to study and work in the UK with few restrictions while holding leave on these routes.

Employment as a professional sportsperson or sports coach will not be allowed.

There will also be no access to public funds while holding limited leave under the routes (though accessing the NHS and attending a state school is allowed).

If you would like further information about these routes or require assistance with applying, please contact Naomi Hanrahan-Soar or Li Xiang.

Related Item(s): Immigration & Global Mobility, Immigration law in Hong Kong, Asia Pacific Region

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Li Xiang,

From 31 January 2021, two new immigration routes will be introduced for British National (Overseas) (‘BNO’) citizens and for their adult children, who are born on or after 1 July 1997. These two routes are BN(O) Status Holder and BN(O) Household Member.

Text:

The detailed Immigration Rules for these routes were published by the Home Office on 22 October 2020.

Who can apply under the BN(O) Status Holder route?

Under the new Rules, any BNO citizen who is ordinarily resident in Hong Kong or in the UK (plus Jersey, Guernsey and the Isle of Man) is eligible to apply under this route. It is not necessary for them to hold a valid BNO citizen passport, as long as they qualify for BNO citizenship. Usually this includes people born in Hong Kong before 1 July 1997 who registered for BNO status (though note that there may be some exceptions depending on individual circumstances).

Some family members of a BNO citizen meeting the above criteria can also apply at the same time as the main applicant. The following categories of family members can apply as dependants:

• Spouses and unmarried partners who are in a genuine and subsisting relationship with the BNO citizen. Unmarried partners must have also lived with the BNO citizen for at least two years in a relationship akin to marriage.

• Children and grandchildren under the age of 18, who normally live with the BNO citizen. Both parents of the child, or grandparents of a grandchild must be applying at the same time. Alternatively, if a child’s or grandchild’s application is being accompanied by only one parent’s or grandparent’s application, that parent or grandparent must evidence sole responsibility for the child.

• An adult dependent relative who is over the age of 18 and is the parent, grandparent, brother, sister, son or daughter of the BNO citizen. In addition, adult relatives must be dependent on the BNO citizen because of their age, illness or disability, form part of the same household and be unable to obtain the required level of help in Hong Kong.

Who can apply under the BN(O) Household Member route?

Adult children of a BNO citizen over the age of 18 and born on or after 1 July 1997 can apply under this route. They must normally live with their BNO citizen parent.

Main applicants under the BN(O) Household Member route can have dependants accompany them to the UK. However, this includes partners and minor children only (not grandchildren and adult dependent relatives).

Eligibility criteria for all applicants

Residence in Hong Kong or the UK

Those applying for entry clearance must be ordinarily resident in Hong Kong. Individuals who are already in the UK must be ordinarily resident in the UK. There is no minimum period of residence or maximum limit on absences to comply with. Applicants will need to show that they live in the UK or Hong Kong on a regular basis and provide evidence confirming this, eg utility bills, tenancy or mortgage agreement, identity card, a letter from an employer, doctor or government agency, school reports, tax documentation or a polling card.

Financial requirement

Applicants will need to show that they can maintain and accommodate themselves and dependants for at least six months. They will need to provide bank statements showing sufficient funds and evidence confirming accommodation arrangements, eg a tenancy agreement, letter from landlord or a family member.

Applicants who have been residing in the UK for more than 12 months are not required to provide the above evidence and will automatically meet the financial requirement.

Tuberculosis testing

Applicants resident in Hong Kong will need to provide TB test certificate from a Hong-Kong based Hong Kong-based approved clinic. UK applicants with leave granted for six months or less or who obtained leave to enter at the border will also need to provide a TB test certificate from a UK-based UK-based approved clinic.

Other requirements

Applicants must not have any serious criminal convictions or adverse immigration history, eg previously deceiving immigration authorities.

It is not necessary for applicants to speak English (and to meet the English language requirement) to be granted limited leave under these routes. However, those who wish to apply for settlement in the future must meet the English language and Life in the UK test requirements.

Application process

The application process for both routes will be launched on 31 January 2021. Before this date, is also possible for BNO citizens and their dependants who travel to the UK to be admitted outside the Immigration Rules on arrival and for those whose existing leave expires before the scheme launches to apply for further stay outside the Immigration Rules. In each case applicants must provide evidence of meeting all the eligibility criteria above.

The Home Office intends to release an ID check app for use in the application process. Applicants with biometric passports can use the app to submit their application. Alternatively, applications can be made using an online form. Applicants will then be required to enrol their biometric information (fingerprints and a digital photo) at a visa application centre.

Visa duration and format

It is possible to apply either for a 30-month visa or a five-year visa. It may be convenient to apply for a five-year visa to avoid the need to renew it in the future, however this will involve greater upfront cost. Successful applicants will receive a digital visa.

Settlement and British citizenship

After five years continuous residence in the UK, main applicants and their dependants may become eligible for settlement, otherwise called indefinite leave to remain (ILR) or. permanent residence. They will need to meet all the usual settlement requirements, which for adults includes passing the Life in the UK test (unless exempt) and not being absent from the UK for more than 180 days in any rolling 12-month period during the five years.

For most applicants, eligibility for British citizenship will become possible a year after settlement has been granted. It will be possible immediately after the grant of settlement for those with a British spouse or civil partner, or for children under 18 who are born in the UK. Naturalisation as a British citizen involves different residence requirements of no more than 450 days absence over the five years before the application (or no more than 270 days over a three year qualifying period for those with a British spouse or civil partner), and no more than 90 days absence in the final 12 months.

Cost

The Home Office application fee will be £180 for a 30-month visa or £250 for a five-year visa.

Applicants will also be required to pay the Immigration Health Surcharge, which is currently £624 per year per adult and £470 per year per child. There may also be additional fees for appointments and for the priority service to expedite application processing.

Visa conditions

Main applicants and their dependants will be permitted to study and work in the UK with few restrictions while holding leave on these routes.

Employment as a professional sportsperson or sports coach will not be allowed.

There will also be no access to public funds while holding limited leave under the routes (though accessing the NHS and attending a state school is allowed).

If you would like further information about these routes or require assistance with applying, please contact Naomi Hanrahan-Soar or Li Xiang.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Li Xiang, Parvin Iman,

The Act provides the legislative basis for ending EU free movement arrangements in the UK after the end of the transition period, and for recognising the immigration status of Irish citizens in the UK.

Text:

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent on 11 November 2020.

What does the Act do?

The Bill contains provisions to:

• Revoke the free movement arrangements EEA nationals and their family members currently enjoy, which enables the Government to bring them within the scope of the immigration system it plans to implement from 1 January 2021

• Clarify and protect the status of Irish citizens in the UK, enabling them to continue to enter and remain the UK without restriction (including that they will not be required to apply for leave) once free movement arrangements end, unless they are subject to a deportation order, exclusion order or international travel ban

• Make changes to social security coordination arrangements between the UK and EU after the end of the transition period for those who are not covered by the Withdrawal Agreement, eg tobring eligibility for income-related benefits for EEA/Swiss citizens in line with those for non-EEA nationals and to stop the export of Child Benefit from the UK

• Require the Home Office to review, or arrange for a review of, the ways in which protection claimants who are in a member State are able to enter the United Kingdom lawfully (this is the only Lords amendment that has been incorporated into the Act)

When will the immigration changes take effect?

Separate commencement orders will need to be laid confirming this, however the immigration changes are expected to take effect from the end of the transition period, ie 11 pm on 31 December 2020. This will be necessary to enable the domestic Immigration Rules to be applied to EEA nationals and their family members with effect from that point.

The Government has made substantial changes to the current system via Statement of Changes in Immigration Rules HC 813, which was laid last month. We have commented on the Rule changes most likely to be of importance to employers here, including the introduction of the new Skilled Worker and Intra Company routes.

Separate regulations have been made to enable people who are eligible to apply under the EU Settlement Scheme (EUSS) to be able to maintain their lawful status in the UK, and to travel to and from the UK during the period from 1 January 2021 to 30 June 2021, which is the main deadline for applying under EUSS.

If you would like further information on this development, please contact a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

The Act provides the legislative basis for ending EU free movement arrangements in the UK after the end of the transition period, and for recognising the immigration status of Irish citizens in the UK.

Text:

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent on 11 November 2020.

What does the Act do?

The Bill contains provisions to:

• Revoke the free movement arrangements EEA nationals and their family members currently enjoy, which enables the Government to bring them within the scope of the immigration system it plans to implement from 1 January 2021

• Clarify and protect the status of Irish citizens in the UK, enabling them to continue to enter and remain the UK without restriction (including that they will not be required to apply for leave) once free movement arrangements end, unless they are subject to a deportation order, exclusion order or international travel ban

• Make changes to social security coordination arrangements between the UK and EU after the end of the transition period for those who are not covered by the Withdrawal Agreement, eg tobring eligibility for income-related benefits for EEA/Swiss citizens in line with those for non-EEA nationals and to stop the export of Child Benefit from the UK

• Require the Home Office to review, or arrange for a review of, the ways in which protection claimants who are in a member State are able to enter the United Kingdom lawfully (this is the only Lords amendment that has been incorporated into the Act)

When will the immigration changes take effect?

Separate commencement orders will need to be laid confirming this, however the immigration changes are expected to take effect from the end of the transition period, ie 11 pm on 31 December 2020. This will be necessary to enable the domestic Immigration Rules to be applied to EEA nationals and their family members with effect from that point.

The Government has made substantial changes to the current system via Statement of Changes in Immigration Rules HC 813, which was laid last month. We have commented on the Rule changes most likely to be of importance to employers here, including the introduction of the new Skilled Worker and Intra Company routes.

Separate regulations have been made to enable people who are eligible to apply under the EU Settlement Scheme (EUSS) to be able to maintain their lawful status in the UK, and to travel to and from the UK during the period from 1 January 2021 to 30 June 2021, which is the main deadline for applying under EUSS.

If you would like further information on this development, please contact a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

As lockdown returns, these FAQs look at the various considerations that employers need to bear in mind in relation to employees working from home.

Text:

As of 5 November 2020, England is back into lockdown. While not quite as severe a lockdown as in March – many will be relieved that schools and other educational institutions and childcare facilities can remain open – it’s clear that working from home will continue to be the new normal for most office-based staff. 

Employers will need immediately to review their homeworking practices in light of both the new lockdown and continually changing government advice. In the longer term, this will also mean reviewing homeworking policies and arrangements on a more formal basis. These FAQs summarise the government guidance on work under the new restrictions and a range of other considerations that employers need to take into account in relation to homeworking.

Should every office-based employee in England work from home?

The new lockdown measures require employees to stay at home except where they cannot work from home, i.e. it is not reasonably possible for them to do so. If the exception applies, they can go to work.

For many, travelling to an office to carry out a screen-based role is unlikely to be justified, although there will be some office-based employees for whom it is not reasonably possible to work from home. Employers will need to make a careful assessment. For more information, see our article on the new lockdown restrictions.

Health and safety

Do employers have health and safety duties to homeworkers?

Yes. Employers owe a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, and provide and maintain a safe system of work – including for employees working from home.

The UK’s workplace health and safety regulator, the Health and Safety Executive (HSE), has updated its homeworking guidance to take account of working arrangements during the  Covid-19 pandemic.

Acas has also published guidance on working from home which can be accessed here.

Do employers need to carry out a risk assessment for those working from home?

The short answer is yes.  However, the exact nature of the assessment will depend on the type of work which is being undertaken at home.

Under the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers have a general duty to conduct a risk assessment of all the work activities carried out by their employees. This involves identifying any hazards and assessing associated risks.  Employers must take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. There are also specific obligations in relation to the use of display screen equipment (see below).

The duty of care which employers owe to employees also apply to those working from home. In these exceptionally challenging times, however, employers are unlikely to be required to approach things in the usual way – not least, because it isn’t currently possible for them to visit employees’ homes. Guidance issued by the HSE on regulating occupational health during the coronavirus outbreak says that it will continue to take a flexible and proportionate account of the risks and challenges arising from the pandemic.

At the very least, employers ought to undertake a basic homeworking risk assessment and consider whether there are any risks which arise from the type of work which is being undertaken from home, whether it can be done safely and whether any measures ought to be put in place to protect employees from any risks identified.  For employees whose work is largely on computers and the telephone the risks are likely to include feelings of isolation, a lack of supervision, physical issues arising from prolonged use of display screen equipment and working long hours and/or inadequate breaks from work.  Employers should go on to consider whether they can implement any measures to minimise the impact of these risks. For example:

• Check that each employee feels the work they are being asked to do at home can be done safely.

• Ensure adequate supervision of junior or less experienced staff members, including new joiners.

• Keep in touch with lone workers, including those working from home, and ensure regular contact to make sure they are healthy and safe. There will always be greater risks for lone workers with no direct supervision, or anyone to help them if things go wrong. This is especially important for new joiners who may struggle to feel integrated.

• Establish clear expectations on both sides in relation to communications, working hours, availability and so on.

• Ensure employees have avenues to report mental wellbeing issues and schedule regular check-ins with homeworkers. In our survey, over a quarter (27%) of employers said that they had seen a significant increase in mental health problems for employees who have been able to work from home. We have produced a helpful guide to wellbeing while working from home and Acas has produced guidance on spotting and handling mental health in the context of homeworking and furlough.

Are there particular obligations where employees are using laptops and computers at home?

The Health and Safety (Display Screen Equipment) Regulations 1992 contain specific obligations in relation to display screen equipment (DSE). Employers must:

• Identify risks for individuals who regularly use DSE, including laptops used for prolonged periods, as a significant part of their usual work. (HSE guidance suggests this means daily usage for continuous periods of an hour or more.)

• Reduce the risks identified to the lowest extent reasonably practicable.

• Provide adequate training and information to employees.

HSE guidance on protecting homeworkers states that there is no increased risk from DSE for those working from home temporarily, so employers are not expected to undertake a full home workstation assessment. Nonetheless, it would be advisable to provide guidance and information on health and safety risks arising from homeworking and to ask employees to assess risk in general terms (including in relation to DSE related problems). The HSE provides a useful checklist which can be given to the employee. Employers should keep the situation under review, since the adverse effects of homeworking with a sub-optimal set up will increase the longer the period of homeworking continues.

For employees working from home on a long-term basis, the risks of using DSE must be controlled by them doing a workplace assessment at home. It remains to be seen whether, as homeworking continues on a widespread basis, the HSE’s position will move towards requiring full workstation assessments for all employees working from home for Covid-related reasons. Given that many employees will have been working at home for over 6 months, it is prudent to provide guidance and support to employees so that they can undertake a workstation assessment. Certainly, those employers moving to a model of permanent remote working for the long-term, regardless of the pandemic, will need to carry out a suitable risk assessment.

What health and safety duties do companies (or “end-users”) have towards temporary or agency workers carrying out work for them at home?

The situation has become more complex in relation to temporary or agency workers during the pandemic, where they are working under the control of the end-user but not at the end-user’s premises. In short, agency workers should be provided with the same level of health and safety protection as employees.

Broadly speaking, the end-user has responsibility for ensuring the health and safety of the agency worker while the individual is working under their control, while the intermediary (e.g. the agency) has the duty to ensure that the end-user has taken steps to ensure the health and safety of the workers. 

Where there are multiple intermediaries (e.g. agencies or umbrella companies) involved in an engagement, or the possibility of multiple workplaces, the parties should agree who will take responsibility for which actions. End-users are encouraged to engage in active communication with all parties to ensure no-one’s health and safety is compromised.

Provision of equipment and expenses

Do employers need to provide homeworkers with equipment to use at home?

There is no general legal obligation on employers to provide the equipment necessary for homeworking.

In guidance issued during the first lockdown, the government encouraged employers to take every step possible to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. Some employers have developed systems to allow employees to take equipment from the office to satisfy this shorter-term need. Some employers are providing a (generally fixed sum) budget to employees to buy necessary work equipment for working at home, so long as receipts are provided.

Employers should provide equipment or flexibility for employees who are identified as being at risk. In circumstances where equipment is specifically needed to address health and safety concerns, employers are liable to fund the cost of that equipment (and possibly have a role in selecting it).

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2020. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

Employers and employees should review their respective insurance policies to ensure work equipment used at home is covered.

There is no income tax or NICs charge where an employer provides office equipment for employees working from home under a formal homeworking arrangement if certain conditions are satisfied, including that the property remains the employers and that there is no significant private use of the equipment.  A new temporary Covid-19 exemption has been introduced where an employer reimburses the employee for the cost of office equipment purchased by the employee in the period 16 March 2020 to 5 April 2021 provided certain conditions are satisfied, including that there is no significant private use.

HMRC has updated its tax rules for employers who cover the expense of providing or reimbursing the cost of homeworking equipment. Detailed guidance can be found here.

Who is responsible for paying any additional homeworking expenses?

Employees will be using their own heating, lighting, broadband and sometime phone lines while working from home but it will be challenging to quantify the amount used for work purposes. Employers are not legally required to reimburse employees for such costs, but they may find themselves under pressure to allow for employees to reclaim some of these expenses. Employers that decide to meet (a proportion of) these costs should review expenses policies to cover this.

If an employer decides to reimburse employees for the additional costs which the employee incurs while working at home under a formal working arrangement, the employer may pay up to £6 per week (£4 per week prior to 6 April 2020) free of income tax and NICs without the need to see receipts or records of expenditure.  If the employer decides to pay more than the £6 per week it will need to either: (i) show that it is reimbursing the actual costs incurred by the employee; or (ii) ensure that the excess above £6 per week is subject to income tax and NICs. The exemption is only available for additional costs and, for example, would not include internet/broadband charges which the employee was paying for prior to working from home under a formal arrangement.

Is there any tax relief available to employees in relation to office equipment and additional expenses?

Some assistance from HMRC is available in respect of both equipment and expenses. HMRC guidance states that payment or reimbursement to employees of up to £6 a week is non-taxable for expenses like electricity, heating or broadband incurred by an employer when an employee is working from home. Further guidance can be found here.

Employees can also claim tax relief if they are paying for these expenses, although they should not claim where their employer is covering the relevant expenses – see here.

Data protection and confidentiality

How should we manage the increased risk to data protection and confidentiality created by homeworking?

Information security and confidentiality are more difficult to manage where employees are hosting calls and meetings at home with others in earshot, or without the usual office systems in place for securing devices and documents. However, the normal duties to protect employer and client confidential information apply even when employees are working from home.

Employers should set out employees’ responsibilities in their homeworking policy (see below) and ensure that employees have adequate means of protecting information. For example, employers should be satisfied of the security of devices and software employees are using (e.g. the security levels of video-calling software and services). Care should be taken in choosing a secure platform that complies with your security requirements.

The Information Commissioner’s Office has produced guidance on the data protection aspects of working from home.

work from home – can we monitor them?

One of the issues which was traditionally raised by employers about homeworking was how best to monitor productivity or quality of output and enable effective supervision. Some employers, out of concern that employees are not managing to “switch off”, might also wish to know what hours employees are working.

Even when employees are working from home, employers still need to comply with duties to ensure rest breaks and other working time obligations. Some employers have adopted technology such as “lone worker apps” through which employees check-in on the app at the beginning of the day and check out at the end of each day.

Employers can monitor employees’ work activities, but the level of monitoring needs to be proportionate and reasonable – discussed further below.

What does an employer need to take into account when considering monitoring?

There is no statutory right to privacy in the UK but this does not mean that an employer has unrestricted monitoring rights. Inappropriate and disproportionate monitoring could lead to claims involving the employees’ right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Employees also have data protection rights and can potentially claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal.

In relation to data protection, the Information Commissioner’s Office’s employment practices code contains good practice guidance for employers in this area. In summary, employers should:

• Complete a privacy impact assessment setting out the purposes of the monitoring, the adverse impact on data subjects, the mitigation and its justification.

• Inform employees of the monitoring that is being undertaken, and the reasons why it has been adopted.

• If sensitive data is being processed, ensure that a legal basis for such processing is being met.

• Limit the number of people who have access to the software and ensure that they are properly trained in confidentiality and data security.

• Not use covert monitoring except in the most extreme circumstances (e.g. where criminal activity or similar is suspected).

Employers will need to weigh the perceived benefits to the business of monitoring, with the potential impact on morale, employee relations and mental health, which may ultimately lead to a deterioration in productivity. For a more in-depth discussion of these issues, please see our article.

Amending employment documentation

Should we amend existing employee’s contracts to reflect homeworking status?

Until the pandemic, homeworking was generally considered to be a non-standard, flexible working arrangement, where the “default” work location was the employer’s premises. Of course, employees have been working from home during the pandemic out of necessity rather than by choice, and the formalised flexible working request regime has to some extent fallen by the wayside (at least temporarily).

Employers may, however, wish to think about whether home working (or other flexible) arrangements need to be formalised in certain cases. Full or partial homeworking may have become a preference for many employees and many employers are considering reducing the office footprint in the longer-term. Even in July our employer survey showed that employers were already having to manage requests for permanent change. To claim the tax and NICs exemptions and reliefs there needs to be a formal home working arrangement in place between the employer and employee under which the employee must work at home regularly, so it is good to record this in writing.

Where contracts are amended to reflect the employee’s home as the place of work, employers will need to retain some flexibility to deal with some of the practicalities. For example, requiring employees to attend the office (for training, appraisals or disciplinary issues) and dealing with how expenses for travel to and from the office should be met. If an employee moves house, this may mean higher travel expense claims or a practical barrier to attending work at the office so employers could consider placing limits on how far an employee can move from a particular location. Employers may also want to retain the flexibility to alter the arrangement temporarily and consider making agreement to homeworking conditional on certain conditions being met, such as satisfactory performance being maintained.

While the uncertainty continues, employers may decide to keep homeworking under review until a definitive return to the office is possible. If so, you should continue to make clear that homeworking is, for the moment, a response to an exceptional situation, and that once a more comprehensive return to the office is anticipated, employees may make flexible working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis. For more on this topic, please see our article.

Some employers have received requests from employees asking if they can work from “home” for an extended period overseas. Employers need to consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request where “home” is not the UK. You can find out more on these issues in our article here.

What is the position for new starters who begin employment as homeworkers?

While recruitment activity has slowed down in many businesses, it has not stopped completely. Employers may wish to consider whether new recruits should be employed on a “working from home” basis from the outset, rather than stating a work location in the contract which they will not attend for some time to come.

Location clauses included in contracts can be drafted to state that the work should be performed from home initially, with a move to the office once it is safe and appropriate to do so. Additional obligations could also be included in contracts for new starters regarding access to an internet connection and other communication methods. Employers may also need to provide equipment (e.g. laptop, mobile phone) to individuals who would not normally be provided with these in their job role.

Should we amend existing policies or handbooks?

Many employers are currently reviewing how existing sickness, data and IT, disciplinary and grievance and benefit policies are impacted by a shift to homeworking.

Regarding sickness and absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force on 28 September 2020. These make it a criminal offence, where an employer is aware that a worker is required to self-isolate, to allow the employee to attend work. In view of the range of circumstances in which employees may be absent from work due to the pandemic, it would be prudent to amend policies to allow for these potential temporary homeworking and Covid-related absences.

Regarding data and IT, it would be sensible to address data and information security issues related to working remotely, together with any need to address monitoring or other new ways in which personal data is being processed due to use of remote-working software.

Regarding disciplinary and grievance policies, employees working from home may no longer be able to attend in-person meetings for disciplinary and grievance procedures and the normal timelines for dealing with issues may need to be altered accordingly. Policies should be updated to ensure a fair procedure for both office workers and homeworkers.

As mentioned above, many employers are either updating or implementing homeworking policies, which draw together many of the areas mentioned above into a single document.

Employee benefits

How could homeworking impact employee benefits?

Some benefits have been used by employees in ways that are specific to their office location and may need to be reconsidered.

Homeworkers are unlikely to be using their commuter season tickets, which may have been purchased via an employer loan, and in many cases employees will already have claimed refunds where possible depending on the provider. Loan arrangements should be discussed and reviewed with the employee directly.

Other benefits may be specific to an office location – for example, subsidised or on-site childcare, gym membership, food. There may be alternative ways of helping employees in the longer term while they work from home, such as supporting them to access their tax-free childcare entitlement, providing occasional food vouchers or reimbursing the cost of attendance at local fitness classes as opposed to a city-centre gym. The provision of such alternative benefits may result in an income tax and/or NICs liability so employer would need to bear this in mind and seek appropriate advice.

Diversity and inclusion

How do we ensure that homeworking doesn’t disadvantage certain groups?

Homeworking may have its advantages for many employees, but employers should be cautious about whether homeworking has the practical effect of disadvantaging certain groups.

This may, for example, occur because of a lack of access to internet in rural areas, shared accommodation, disability, caring responsibilities, financial issues or other individual circumstances. Diversity and inclusion policies extend to homeworking and employers should invite and encourage employees to make any disadvantages known in order that reasonable steps can be taken to remove or reduce them.

As mentioned above, disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2010. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

 

Related Item(s): Employment, Covid 19 – Coronavirus, Occupational Health & Safety

Author(s)/Speaker(s): Abi Frederick, Annabel Lindsay,

The COVID-19 pandemic has significant and wide-ranging economic as well as public health impacts. Businesses are feeling the side-effects of profoundly changed trading circumstances. This note will take you through the immigration implications of a number of actions you may be forced to take to protect your business due to the pandemic, taking into account Home Office guidance as this is updated.

Text:

(Updated as of 2 November 2020) 

Key points from latest guidance

The Home Office last issued revised information on GOV.UK on 14 April 2020 however this guide has been updated to consider wage support schemes other than the furlough scheme. We have also added a new section covering the potential need to review your sponsor licence as a result of economic impacts caused by COVID-19.

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 four or more weeks of unpaid leave per calendar year, according to their normal working pattern. So, for a person working a five-day week, the number of days taken must be less than 20 and for a person working a four-day week, it must be less than 16 days. This is cumulative and not only in one single block.

The Home Office’s standard guidance indicates that the person’s immigration permission may be cut short if this occurs, and that a sponsor may also face compliance action. However, the Home Office Coronavirus (COVID-19) immigration guidance for Tier 2, 4 and 5 sponsors initially published on 27 March 2020 states that sponsors are not required to withdraw sponsorship and will not face enforcement action if an unpaid absence from work of any length is authorised and due to coronavirus. The absences do not need to be reported on the SMS. The guidance refers to absences including illness, isolation or inability to travel due to travel restrictions. Following the closure of schools and other childcare providers, our view is that an absence due to the need to care for children during the closures would also be covered as being due to the outbreak. When using this concession, sponsors should take care to make an assessment of whether each particular absence is ‘due to coronavirus’ and note this on the employee’s HR file for audit purposes.

Cutting salaries and/or reducing hours

If you are having to consider cutting salaries or reducing working hours, this may have implications for Tier 2 workers.

A drop in salary, whether made directly or as the result of a reduction in hours, has to be reported on the sponsor management system (SMS) 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 experienced workers under the Tier 2 General visa route, or the minimum appropriate rate for the specific occupation under the relevant SOC code (if this is higher than the applicable general minimum), then the usual position is that they cannot continue to be sponsored. There are some specific exceptions where workers can continue to be sponsored, including where they are absent on an unpaid basis due to parental or long-term sick leave.

On 3 April 2020 the Home Office announced a concession for sponsors who have temporarily reduced or ceased trading. These sponsors can temporarily reduce the salary of sponsored workers to 80% of the salary recorded on their CoS or £2,500 per month, whichever is lower. This concession sets aside the requirement for sponsored workers to satisfy the minimum salary threshold for their job type and visa category, including where they have been furloughed or otherwise covered by a wage support scheme (see further information on this in the separate section below). Once the temporary salary reduction has ended, the salary must be returned to at least the same level as previously indicated on the assigned Certificate of sponsorship (CoS).

Usually, 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 standard guidance requires the person to make a new visa application. However, the latest Home Office guidance does not appear to discount any type of Tier 2 sponsored worker from the salary reduction concession, including high earners, as long as the policy is company-wide with a view to avoiding redundancies and all workers are treated the same. We interpret this to mean that sponsored workers are not to be treated more or less favourably than non-sponsored workers. The concession also does not appear to be restricted to the situation where the salary reduction occurs as the result of a sponsored worker being furloughed. The Home Office may provide further clarity on these points in due course so please seek further advice from us if you have Tier 2 workers affected.

Deferring salary

Tier 2 workers must be paid in accordance with the information set out in their CoS, taking into account any subsequent changes reported on the SMS. If you choose to defer a sponsored worker’s salary, this should be reported on the SMS. You should also ensure the deferral arrangement is appropriately documented on the worker’s HR file.

If deterioration in the business’s financial circumstances results in the deferral becoming a salary reduction, then the information above on cutting salaries would apply.

Secondments and role changes

You may consider seconding a Tier 2 worker, for example where there is reduced need for them to carry out their role in your business. This is allowed if the secondment is so you can fulfil a contractual obligation with the receiving business, the worker will provide a service or work on a project with a specific end date, and the service or project will not be operated by you or anyone else after that time. You must also continue to have genuine responsibility for deciding the duties, functions and outcomes of the job the worker will do while on secondment, as well as being able to monitor the worker for the purpose of complying with your reporting duties.

You may also consider altering the duties of a sponsored worker such that the new duties do not fall within the job description on their CoS. This could happen as part of a secondment or due to changed operational needs. If so, a change of employment application (possibly including resident labour market testing) may need to be made. The only exception would be where the new duties still fall within the sponsored SOC code and the worker would not be moving from a shortage occupation within the code to a non-shortage occupation.

Normally, a change of employment application must be approved before a person can start working in their new role. However, the Home Office’s guidance on GOV.UK has stated since 14 April 2020 that a Tier 2 or 5 worker with a pending in-country change of employment application may start work in their new role before their application is decided, provided certain requirements are met. These are covered in our guide to the immigration implications of COVID-19 for UK employers under the section on moving immigration category.

In some cases a sponsored worker may wish to work abroad during the pandemic. See our separate article for further information on that scenario.

Using government wage support schemes for your employees

The government has put in place various wage support schemes for business, including the Coronavirus Job Retention Scheme (‘furlough scheme’) and the Job Support Scheme.

The furlough scheme was designed to provide UK employers with support for paying wages of staff who would otherwise have been laid off or made redundant (furloughed) as a result of COVID-19.

Its successor, the Job Support Scheme comprises two wage support schemes, one to support businesses required to close as a result of coronavirus restrictions and another to support eligible businesses that can stay open but are facing lower demand. General FAQS on the Job Support Scheme (open and closed) and information on the operating dates for each scheme can be found here.

The Home Office has made provision for wage support schemes to be applied to sponsored workers. This is set out in a concession first published on 3 April 2020 as an update to the Home Office’s COVID-19 guidance for sponsors.

Under the concession, sponsors can temporarily reduce the salary of sponsored workers to 80% of the salary recorded on their CoS or £2,500 per month, whichever is lower. These figures match those that were allowed by the furlough scheme. The reduction in salary must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. Our view is that it would not be acceptable for sponsored workers to be selected for inclusion on a wage support scheme as a group because of their visa status, or for them otherwise to be treated more or less favourably than non-sponsored workers. Once the period of temporary salary reduction ends, the salary must return to at least the rate specified on the sponsored worker’s CoS. All changes in salary must be reported on the SMS within 10 working days of the change.

However, the job support scheme in place from 1 November 2020 is not as generous as the furlough scheme it replaces. Under the job support scheme, employees are required to work a minimum of 20% of their usual hours (and receive payment as usual) with the government contributing 61.67% of pay for hours not worked (capped at £1,541.75 per month) and employers contributing 5% (capped at £125 per month). Overall, this means employees will receive at least 73% of their normal pay (if their monthly wages do not exceed £3,125), although employers are able to top this up if they choose. The Home Office has not amended the salary reduction concession to mirror the new figures provided for in the job support scheme. This means that unless an amendment is forthcoming, if you intend to apply the job support scheme to a sponsored worker, you must still ensure the concession is also met, which may mean  providing additional hours or topping up wages in some cases.

There will also be extra considerations for those employees who you intend to place on a wage support scheme who are working for you on a Tier 2 sponsored work visa.

During any period of time on a wage support scheme, Tier 2 employees are permitted to undertake training or do voluntary work in some circumstances. Supplementary employment is allowed, but only in a shortage occupation or in the same role and at the same level as their sponsored role. Supplementary employment also must be for no more than 20 hours a week and outside of the working hours stated on the sponsored worker’s CoS.

Additionally, the payouts from the Government under wage support schemes derive from public funds. This may cause confusion or doubt given that Tier 2 sponsored workers and their dependants are prohibited from having recourse to public funds. In accordance with the definition of ‘public funds’ under the Immigration Rules, receiving funds that are made payable to employers through the scheme will not constitute recourse to public funds. However, where the Government indicates that any reduction in salary may entitle workers to support through the welfare system, it is important to note that this is not available to Tier 2 sponsored workers or their dependants. To claim benefits in this way would be in breach of their immigration conditions, which could lead to the individual’s immigration permission being cut short or to future applications being refused. It could also potentially lead to compliance action against you as a sponsor. 

If you are considering placing Tier 2 workers on a wage support scheme, we would recommend you contact us for specific advice on appropriate actions including the following:

• Reporting all changes in salary or working hours on the SMS as a change in migrant circumstances

• Ensuring earnings do not drop below the amount permitted by the concession

• Keeping detailed records of what has occurred, including records of the actions you have taken across the business to avoid redundancies, in case of future audits

• Reminding any Tier 2 workers who covered by a wage support scheme of the immigration conditions they have that restrict work, training and volunteering

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 SMS 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 further permission to stay 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, for Tier 2 General migrants or £120,000 for Tier 2 Intra-Company Transfer migrants, or where their original Tier 2 CoS was assigned for three months or less.

The Home Office’s COVID-19 guidance for UK visa applicants and temporary UK residents currently confirms that people with a visa expiring between 24 January 2020 and 31 May 2020 will be allowed to extend their stay in the UK in circumstances where they would normally have to apply from abroad, but that all other requirements and fees for applications remain unchanged.

For now, aside from sponsors not needing to report working from home due to COVID-19, or COVID-19-related absences, all other reports must be made as normal.  It is possible that further requirements may be waived once the Home Office has had an opportunity to further consider the implications of the situation as it develops, but this is not guaranteed. Please contact us for further advice should you have specific questions about the impact of termination on any sponsored employees.

Reviewing your sponsor licence

The economic impacts of COVID-19 may also have implications for your sponsor licence.

It may be necessary to add or remove key personnel from your licence due to staffing changes, for example where employees with sponsor licence responsibilities go on sabbatical, are made redundant or otherwise leave your business.

It may also be necessary for sponsored employees to be moved from one licence to another, or for a new licence to be applied for due to corporate restructuring.

The Home Office may also need to be informed of changes to group structure due to the need to evidence the intra-company links between entities when sponsoring Tier 2 Intra-Company Transfer migrants, or if you hold a licence which covers a number of UK entities within your group.

For further information

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

For information and guidance on issues including business continuity, contractual considerations and employer/employee relations visit our COVID-19 hub.

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances.

(Updated as of 2 November 2020) 

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

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