On 1 July 2020 the UK government announced its commitment to establish a new visa scheme for all British National (Overseas) persons and their dependants. This will provide a readily available opportunity for millions of residents of Hong Kong to move the UK far more easily than those routes currently open to them.

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It is currently only for British Nationals (Overseas) (“BNOs”), as well as their dependants. BNOs are those persons who were British Overseas Territories Citizens from Hong Kong and registered to become BNO by 30 June 1997. It is no longer possible to become a BNO if you are not already. There are currently estimated to be about 2.9 million BNOs in Hong Kong.

Eligibility for the main applicant under the new visa category will be based primarily on simply being a BNO without any prohibited criminal history or character-related concerns. The government announcement states that dependants will need to be usually resident in Hong Kong to qualify. Further requirements may be introduced as the scheme comes to fruition, but we would expect these to be relatively easy to meet otherwise the purpose of the scheme would be defeated. The visa will be granted for a five-year period and allow the holder to work or study in the UK. They can then apply for indefinite leave to remain (“ILR”) after five years continuous residence in the UK on the BNO visa.

Registration as a British citizen will be available for BNOs after a further one year holding ILR and meeting certain requirements regarding absences and good character. It is not yet clear whether citizenship for dependants will be by registration or naturalisation. If dependants aged 18 or over are required to naturalise, then they would additionally need to meet a Life in the UK and English language test assessment. For child dependants aged under 18, the existing laws for registration will likely be applied.

The five-year visa has been described as “special and bespoke”, honouring the UK’s historic commitment to Hong Kong and in light of the recently introduced security laws being passed by China which have deeply troubled the UK.

The implementation of the new visa route is likely to be streamlined and efficient, utilising the technology and experience of the Home Office’s settled status team. This team has already completed approximately 3.6 million applications for EEA nationals and their family members who needed to be brought under UK law as a result of Brexit. That project will soon be reaching its end as EEA nationals only have until June next year to apply and will likely wish to have their status before 1 January 2021 when EEA Free Movement ends.

The details of the BNO visa are yet to be determined, however a press release issued by the government confirms this will be “in the coming months”. In the meantime, individuals who wish to be able to enter the UK for an initial period of six months under a BNO passport and to avail themselves of British consular assistance when they are outside of the UK, China, Hong Kong, and the Macau Special Administrative Region may need to apply for this. Her Majesty’s Passport Office is already seeing a significant increase in applicants for BNO passports and it is important to get the application correct to avoid unnecessary delays. It is not yet clear whether a BNO passport will need to have already been issued to a main applicant under the BNO visa route, or if alternative evidence of BNO citizenship will suffice.

A further point requiring clarification is whether an application fee will be charged for the visas and if so at what level. It is anticipated that application fees will be applicable for citizenship applications. Currently these are £1,206 for BNOs registering as a British citizen, £1,330 for naturalisation and £1,012 for child registration. A biometric enrolment fee of £19.20 must also be paid for citizenship applications.

If you are not a BNO citizen or eligible dependant, there are other visa options that could be of assistance.

What if I am not eligible for the BNO scheme?

The most common routes to the UK for Hong Kong residents are Tier 2 sponsored work visas and Tier 4 student visas. There are other routes such as those linked to familial connections such as an EEA or British spouse, investment routes such as the Tier 1 Investor requiring £2 million to invest in the UK or the Representative of the Overseas Business visa for those who wish to set up a new outpost in the UK of an overseas business. 

Tier 2 is the most common work-based visa and around 27,000 are issued each year. It requires a job offer from an employer willing to sponsor the individual. The job must meet a minimum skill and salary level amongst other requirements. But the downside for individuals is that they can only work in the job their visa has been issued for which can be somewhat restrictive. For individuals who are truly exceptional in their field, the Global Talent visa provides freedom to work for yourself or for any employer within your field though it is a much more difficult visa to obtain with around 1,200 approvals in the last 12 months.

From Hong Kong in particular, there are a large number of applicants for Tier 4, the UK’s student visa. This requires sponsorship from the relevant educational provider. It also requires significant funds to be held to prove course fees and personal maintenance can be met. Unfortunately, it is very much a temporary visa and does not lead to a permanent status in the UK unless you are able to live in the UK legally and continuously for at least ten years with absences less than 540 days over the entire period, and no single absence of more than six months.

Given the complex and bureaucratic nature of the UK immigration system, there are many pitfalls that are easy to fall into. When under pressure and looking to obtain a visa in order to provide options in uncertain times, using authorised experts from the UK may take away some of the anxiety around applying. If you have any queries or need help with making an application, please contact Kathryn Weaver or Naomi Hanrahan-Soar.

 

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

Author(s)/Speaker(s): Kathryn Weaver, Naomi Hanrahan-Soar,

Covid-19 is causing many employees to ask if they can work from “home” for an extended period in an overseas country – for example, because it is their home nation or their family is based there. This article explains the potential legal issues and how to avoid the traps.

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Employers should consider a variety of issues, including tax, social security, immigration and employment implications, before agreeing to an employee’s request to work from home when “home” is not in the UK. We look at each of these issues below before explaining what practical steps you can take to minimise the risks.

Tax and social security implications of working temporarily abroad

From a UK perspective, unless the anticipated duration of the stay is so long that it may impact tax residency (see below), the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code notwithstanding that the employee is temporarily working overseas. In addition, the employer should continue to deduct employee national insurance contributions (NICs) and pay employer NICs.

You will need to consider, however, whether the employee’s stay in the host country creates risks of income tax or social security liability in that country – or even the risk that you (as the employer) are regarded as having created a permanent establishment there. Several tax authorities have issued concessions in the light of Covid-19, but not all have done so, and it will be important to establish the rules in place in the relevant host country. We briefly outline the issues below.

Income tax may be payable in host country if employee becomes tax resident

The starting point is that the host country has primary taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double tax treaty (DTT) between the UK and the host country, the employee may be exempt from income tax there if certain conditions are satisfied, including that the employee is not a tax resident in the host country.

The employee’s residence status is determined in accordance with the DTT by reference to their personal circumstances, and whether the number of days they are present in the host country over a 12-month period (however briefly and irrespective of the reason) exceeds 183 days.

The UK has a DTT with most countries, including all 27 EU countries and most other major world economies. In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for host country income tax.

Remember, though, that employees who have already spent other periods in the host country in the same 12-month period (e.g. visiting family) may reach the 183-day threshold sooner than you think. Also, the full details of the conditions can differ from DTT to DTT (particularly the period over which the 183-day test must be satisfied), and the employer and/or employee may still have obligations in the host country even if the DTT applies. (For example, the employer may need to register with local authorities as an employer and/or report on the income that is being paid to the employee.). It is therefore important to understand the local position.

If the employee does become subject to tax in the host country but remains UK tax resident, they will remain subject to UK income tax on their worldwide income but should be able to obtain credit for some or all the tax they pay in the host country. They will, however, need to complete the appropriate tax declarations, which could be a complex process.

Social security position is complex and depends on what agreements are in place

The general rule is that employee and employer social security obligations arise in the country in which the employee is physically carrying out their duties.

In the European Economic Area (EEA) and Switzerland, there are currently exceptions to this general rule which allow a UK employee and their employer to continue to pay UK NICs and not pay social security contributions in the host country if certain conditions are satisfied. It is crucial to obtain an A1 (or E101) certificate from HMRC (or the social security authorities in the employee’s country of residence if different). Note that these rules are due to expire on 31 December 2020, when the current Brexit implementation period ends, and it remains to be seen whether there will be a trade agreement between the UK and EU which will replicate any of these features.

Outside the EEA and Switzerland, the position will depend on whether there is a reciprocal agreement between the host country and the UK. In countries where there is a reciprocal agreement, such as the USA or Japan, it is possible for an employee to remain within the UK system (and not pay local social security contributions) for up to five years if they have a valid certificate of coverage.

In other countries where no agreement exists, the UK employer must continue to deduct employee UK NICs and pay employer NICs for the first 52 weeks. Further, depending on the social security regime that is in place, there may also be a liability to pay social security contributions in the host country in addition to any contributions that are made in the UK.

Risk of creating a permanent establishment is low but should be considered

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. This would be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country.

If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country. It would also mean that the income tax exemption in the DTT would not apply. While this may be less of a problem if you already have established operations in the host country, it could be a real headache if you do not.

Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created. The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the principal terms of contracts with customers which are simply “rubber-stamped” without amendment by UK employees.

Immigration implications of working abroad temporarily

Immigration permission is generally not required for business visits. Depending on the employee’s activities, it may be possible to characterise their stay as a business visit – for example, if their activities are limited to those typically undertaken during business trips (e.g. meetings and training). However, restricting an employee’s activities in this way is unlikely to be practical for many employees and, in general, the longer an employee works without permission, the more difficult it will be to characterise their stay as a business visit. In some countries, work itself is prohibited even as a business visitor.

Currently, if the employee is a UK or EEA national, they have the right to live and work in an EEA country (although this position will change for UK nationals from 31 December 2020 when the current Brexit implementation period ends).

If an employee is not an EEA national and/or wishes to work from a non-EEA country, you will need to consider what restrictions may be in place. For example, if they want to work in Hong Kong but don’t have permission to stay there indefinitely, they should not undertake any work without permission, even for a limited period and even if the employing entity is not a Hong Kong entity. As with tax and social security, some countries have implemented emergency Covid-19 legislation that will affect the normal immigration position, but this is not the case everywhere.

You may also need to consider any immigration issues that could arise on the employee’s return to the UK. For example, EU nationals should consider whether to secure settled or pre-settled status in the UK before they travel overseas. Other non-British nationals should consider whether their absence from the UK may affect their visa, or their eligibility to apply for other types of status in future where absences are assessed, such as indefinite leave to remain, permanent residence or naturalisation as a British citizen.

Employment law and data privacy implications of working abroad temporarily

On top of the tax, social security and immigration implications explained above, there are various other employment law and data privacy considerations.

Mandatory employment protections may apply

If employees live and work abroad, even for short periods, they can become subject to the jurisdiction of that other country and start to benefit from the applicable local mandatory employment protections. These may include minimum rates of pay, paid annual holidays and – perhaps most importantly in the event of a dispute – rights on termination. What protections, if any, an employee acquires will depend on the country in question. 

Within the EEA, there is also the Posted Workers Directive (PWD) to consider. This applies where an employee is “posted” from one undertaking or establishment to another cross-border within the EEA (and, until 31 December 2020, the UK). Changes to the PWD, which must be implemented by the end of July, mean that employees will be entitled to the same mandatory pay as comparable employees in the host location.

The PWD itself was not designed to cover the situation of an employee working from home temporarily in another EEA country, and it would not be directly engaged unless you opt for a formal secondment to a local group company or ask the employee to work on a contract for a local client. However, the local implementation of the PWD may nonetheless end up capturing this situation.

For example, in Belgium the local implementation of the PWD requires that all employment, remuneration, working terms and conditions and collective bargaining agreements that have been declared generally binding apply as of day one to any employee working temporarily in Belgium. This is also true of the UK, where employees have certain minimum statutory rights from day one. This can be a complicating factor, particularly if a dispute or termination scenario arises and the employee asserts that they have employment rights in another jurisdiction.

Be careful about transferring data

If an employee’s role involves processing personal data, this could give rise to data protection issues, especially if the employee is requesting to work from a country outside of the EEA which is not subject to the General Data Protection Regulation and other EU data privacy laws.

Local health and safety protections may apply

UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home. If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment which in some cases might involve making a contribution or purchasing relevant equipment.

Employees will also need to comply with applicable public health guidance (e.g. quarantine periods) both in the host country and on their return to the UK.

How to minimise the risks

Given the current situation, you will no doubt want to be flexible when it comes to accommodating requests to work from home overseas, but you will also want to minimise the risks. Depending on how many requests you expect to receive, you may even want to consider developing a short policy to ensure that these situations are dealt with consistently and fairly. It is possible that you will receive more such requests in future, as employees look to take advantage of increased remote-working opportunities to ask if they can work abroad for a short period on a regular basis.

The key practical steps for minimising the risks are as follows:

• Only accept requests if the employee’s role can be performed effectively remotely and can be done lawfully from the country in question.

• The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.

• Always take expert local advice on any tax, social security, immigration and employment obligations you may have in the host country, and on any Covid-19 concessions that have been issued. The employee may also need their own advice.

• Much will depend on the identity of the host country and the nationality of the employee. For the time being, working in the EEA is generally more straightforward but this will change after 31 December 2020 when the Brexit implementation period comes to an end.

• Check what data processing the employee will be doing, and that this can be carried out lawfully in line with your usual policies.

• Agree the terms of any temporary overseas working arrangement and record them in writing. Ideally, these should clarify that:

• the employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a short period in an overseas location (and that the employer is authorised to make additional deductions or seek reimbursements, if necessary, for this purpose)

• the employee will be responsible for any personal tax declarations that may need to be made

• the employment contract remains subject to UK law and jurisdiction

• the employee is still working solely for the UK business

• the employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such an authority

• the employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively

• the employee accepts that they are working from home at their own risk and that the employer will not be liable for any loss they suffer due to their request being approved

• the employee must comply with all applicable public health guidance in both in the country to which they travel and in the UK.

Related Item(s): Employment, Covid 19 – Coronavirus, Employer & employee relations, Immigration & Global Mobility, Tax for Employers & Executives, Workplace Data Privacy

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

Windrush Day is a time to celebrate the substantial and ongoing contribution of the Windrush Generation and their descendants, who helped to rebuild the UK after the second world war and who have influenced our social, cultural and political landscape ever since. It is also a time to reflect on righting the wrongs of the Windrush scandal and to focus on the fight against racism.

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Windrush Day was only established in 2018, on the 70th anniversary of the arrival of the HMS Empire Windrush at Tilbury Docks in Essex. This happened after a successful petition by the campaigner Patrick Vernon.    

Almost all of the Windrush Generation are of black Caribbean origin. Although they were originally asked to come to the UK to as citizens of the UK and colonies, with the same legal rights to live and work in the UK as those born here, on arrival they faced significant race discrimination and limitations on their opportunities, being described in official documents on early Caribbean migration as ‘coloured colonial labour’. Many ended up taking up essential but low-paid jobs in sectors such as healthcare, transport, manufacturing and construction, despite having previously worked in more skilled positions. 

When the Immigration Act 1971 came into force at the beginning of 1973, the Windrush Generation were classified as having the right of abode in the UK and they continue to have the right to live and work in the UK up until now. They were not given any evidence of this status, nor did the Home Office keep records. Some did obtain evidence over time, however many did not. 

Those without evidence of their status started to have their lives turned upside down as initiatives to tackle illegal migration were rolled out over time, and in particular with the implementation by the Government of ‘hostile environment’ measures from 2012. These required (and still require) individuals living in the UK to provide evidence of their lawful immigration status in the context of areas such as employment, accessing accommodation and healthcare, and when consideration is being given to entry to the UK, detention, removal or deportation. The results of these measures were devastating, with people losing their livelihoods and pensions, their homes, their sense of identity and security, and their ability to be with their family. In the case of those denied cancer and other critical healthcare, people literally lost their lives. 

The situation did not receive much attention from the Home Office until April 2018, when the Guardian newspaper ran front page stories on it for two consecutive weeks, sparking a worldwide media response and setting off a chain of events that ultimately forced the Home Secretary, Amber Rudd, to resign.  A Windrush Taskforce was set up at the Home Office to provide members of the Windrush Generation with free documentary evidence of their status. A review of historical cases was carried out, a hardship fund and compensation scheme were established and an independent review was commissioned to identify key lessons for the Home Office. 

The review by Wendy Williams was published in March this year, and although it falls short of finding institutional racism within the Home Office, the independent reviewer stated that its failings showed an ‘institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation within the department, which are consistent with some elements of the definition of institutional racism’. 

Windrush Day is important, because aside from being a celebration, it provides an opportunity to reflect on what progress has been made to provide redress to the Windrush Generation following the Windrush scandal, and to renew efforts to ensure the measures put in place are made effective. The Windrush lessons learned review report notes that although the National Audit Office estimated in its report on Windrush that there might be up to 500,000 people in the UK who may have difficulties documenting their status, the Windrush taskforce had only issued documentation to 8,124 people as at September 2019. There had been 1,108 claims but only 36 payments made under the compensation scheme by 31 December 2019, amounting to £62,196. Clearly further substantial work needs to be done. 

Racism in the UK is real and invidious. It affects the perceptions and actions of our parliament, our civil service, our businesses and private individuals. In relation to the Home Office and the Windrush scandal, the independent reviewer found that ‘(t)he department has failed to grasp that decisions in the arena of immigration policy and operations are more likely to impact on individuals and the families of individuals who are BAME, who were not born in the UK, or who do not have British national origins or white British ethnic origins’.  

If real and lasting change is to occur in removing the less favourable treatment and detriments experienced by the BAME members of our society, including the Windrush Generation, it is incumbent on all of us to educate ourselves on the UK’s history and in particular the structural inequalities generated from its colonial past. We must also become more sophisticated in being able to identify and speak out against racism, as well as taking action in our own professional and personal capacities to address it.  

Related Item(s): Immigration

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

UK visa processing is slowly starting to resume this month, but it is not yet business as usual. There are still many things that employers and applicants need to monitor, and potential pitfalls to avoid.

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Whilst we continue to provide updated insight throughout the COVID-19 pandemic on the immigration issues affecting businesses and the temporary guidance and concessions implemented by the Home Office during this period, this article focuses on considerations for employers and visa holders as the UK and other countries around the world begin a gradual transition out of lockdown.

The issues relating to processing remain complex and, as each country will be moving out of lockdown at a different pace depending on their own local restrictions, each application should be considered on a case-by-case basis. Please contact us for advice to discuss the details of specific cases.

1. Visa processing – applying to remain in the UK
2. Visa processing – applying from abroad
3. Sponsor compliance
4. Indefinite Leave to Remain (ILR)

1. Visa processing – applying to remain in the UK

Discretionary extension concession

For many countries, the status of the pandemic and risk to public health means that it is deemed too soon by individual governments to be able to safely resume normal service. This has continued to impact individuals in the UK on a temporary basis who have been unable to return home on account of travel restrictions and safety concerns. In light of this, the latest published guidance as updated by the Home Office on 22 May 2020 provides that discretionary extensions may now be granted until 31 July 2020 (an amendment to the previous 31 May 2020 date).

The concession is applicable to visitors and visa holders present in the UK, with a visa expiring on or before 31 July 2020, who are unable to leave the UK due to COVID-19 travel restrictions or self-isolation and were not intending to remain in the UK beyond their visa expiry. The Home Office has however confirmed to us that the extension process may be used before making an application for further leave to remain in some cases.

Anyone who already applied for and was granted a discretionary extension until 31 May 2020 will automatically have their leave extended until 31 July 2020 without the need to submit a new request. Those who were not previously eligible to apply, i.e. individuals with visas expiring in June/July 2020, may now complete an online request. As before, the request must include the reason for not being able to depart the UK and decisions should be received within approximately five working days. Despite the extension being valid until 31 July 2020, individuals are expected by the Home Office to depart the UK as soon as it is safe and possible to do so. The status of safety in the destination country and options to depart the UK should therefore continue to be monitored. There is no indication of a further extension to this concession at this stage.

Leave to remain applications

As outlined above, the discretionary extension concession is not intended for visa holders approaching visa expiry with an intention to continue residing in the UK, e.g. Tier 2 visa holders continuing in sponsored roles. In this circumstance, the appropriate action is to submit a visa extension application in the usual way before the current visa expires.

In the run up to lockdown measures being introduced in the UK, applicants with confirmed biometric appointments began to be notified of cancellations due to the closure of the UKVCAS service points across the country. Once the lockdown was in full force from 30 March 2020, applicants could no longer book an appointment. More recently, applications submitted online could only be finalised by opting for standard processing, with no fast-track services available and no option to book an appointment.

All of these applicants have been left in limbo, with both standard and fast-track applications pending but no sign of when a decision will be forthcoming. Those who have paid for fast-track processing should receive a refund if their application is processed under the standard option.

However, since 1 June 2020 UKVCAS has commenced a phased and controlled reopening of their service points. Appointments are available from 1 June 2020 onwards.

In the first instance, appointments will be offered to applicants who had their original appointments postponed due to the suspension of UKVCAS services. Affected applicants will be contacted directly with an invitation to schedule a new appointment, honouring the appointment fee already paid.

Updates on which centres have reopened can be found on the UKVCAS website. If the appointment options are unsuitable, applicants will be able to wait for their preferred service point to reopen without any adverse impact on their immigration application.

As an exception, healthcare workers requiring an appointment are asked to contact the Coronavirus Immigration Helpline directly to schedule an appointment.

All remaining applicants should complete the UKVCAS account registration after submitting their online visa application so that they can be notified directly at a later date to book their appointment.

Applicants should also ensure contact details entered on the application form are accurate as they may be contacted by a Home Office caseworker to:

• confirm the application has been received as a valid, in-time application before the current visa expiry date, that the conditions of the current visa will continue until such time as a decision can be made and that processing of the application is likely to take longer than eight weeks; and
• submit digital copies of supporting documents that have not already been self-uploaded so that these can be considered, leaving biometric enrolment as the final stage of the process as a way of minimising further delay.

In all cases, there will be no expedited application processing until the Home Office has cleared the current backlog and they are confident that they can meet the priority (five business days) and super priority (one business day) service standards.

Leave to remain – switching to a new category or new sponsor

Monitoring by sponsors will be particularly important in the case of Tier 2 and 5 visa applicants who have commenced employment with a sponsor company ahead of receiving a decision on their application, in line with the Home Office’s concession dated 14 April 2020. This concession remains in place and is especially helpful for Tier 2 General change of employment applications where an existing Tier 2 General migrant switches their sponsorship to a new employer.

Applicants are eligible under this concession only where they have been assigned a valid Certificate of Sponsorship (CoS), the online application is submitted before the current visa expiry, and the role they perform is in line with the details stated on the CoS.

As Home Office services gradually resume, decisions will be issued. In the event that an application is rejected as invalid or refused, employment may need to be terminated to comply with prevention of illegal working guidelines. If there are any changes to report, these should be recorded on file while it is not possible to submit reports on the live CoS. Sponsors are advised to contact us for advice on specific cases of this nature prior to taking action.

Switching concession

The Home Office COVID-19 guidance for applicants was also updated on 22 May 2020 in relation to individuals currently in the UK with a visa expiring on or before 31 July 2020 and who would ordinarily be required to submit their long-term UK visa application (e.g. Tier 2 General) from overseas. These individuals are exceptionally permitted to submit the application from within the UK using UK extension application forms and paying the relevant UK fee.

Whilst the Home Office has demonstrated flexibility in this situation, the process of applying within the UK has not been so straightforward. For example, it is still not clear whether the Home Office will apply entry clearance or further leave to remain Rules to those who apply under the concession. The Home Office has been asked to take a pragmatic view where there is increased scope for error.

Applicants should seek advice before submitting an application and ensure that any contact details provided as part of the application are correct and up-to-date so that any Home Office requests for further information can be received and responded to.

2. Visa processing – applying from abroad

The Visa Application Centres (VACs), operated by the Home Office’s two commercial providers VFS Global and TLS Contact, have re-opened on a phased basis from 1 June 2020 where local restrictions allow. This includes centres reopening in Australia, parts of Asia and Europe. However, where local restrictions apply, VACs will reopen on a later date to be confirmed.

The latest status updates can be found online when selecting the specific location information:

VFS Global

TLS Contact

Entry clearance applicants must ensure they can satisfy the requirements of the visa category unless a specific concession applies. Even if a VAC has resumed appointments, it may be necessary to pass an English language test, obtain a TB certificate or complete a UK NARIC assessment before submitting the application:

• English language testing – centres and locations will vary globally depending on the current public health restrictions. The relevant websites can be checked for regular updates – Pearson, IELTS and LanguageCert
• TB testing – the test centre in the relevant location should be contacted to confirm up-to-date status.
• UK NARIC – assessments continue to be completed digitally for the time being, with hard copy statements to follow once services resume.

Urgent travel to UK in compelling and compassionate circumstances

It may be possible to request a visa waiver to allow urgent entry to the UK without applying for a visa or collecting a visa that has already been granted. This is more likely an option where VAC services remain suspended and there is no other option to request a visa or obtain documents. Where VACs have reopened, there is likely to be more pushback on visa waiver requests. If there are exceptional compelling and compassionate circumstances, individuals should contact the local consulate, High Commission or British Embassy local to them to seek further assistance.

Before leaving the UK to apply from overseas

Before departing the UK to submit an application from abroad, applicants should consider their eligibility to apply from the UK in line with the Home Office’s COVID-19 switching concession. This may be an option for individuals holding a temporary UK visa for the UK which expires on or before 31 July 2020. Applications must be submitted before 31 July 2020 and the requirements of the application should still be satisfied.

If the concession does not apply and the applicant must leave the UK to submit the new visa application from abroad, they should keep up-to-date with any requirements on re-entry, such as a 14-day mandatory self-isolation. This may impact availability to attend an appointment at the visa centre.

Expiry of temporary 30-day vignettes

For applicants who were granted visas before the restrictions commenced but were unable to travel within the period of their 30-day vignette, requests can now be submitted for a replacement vignette to facilitate entry to the UK. There is no government fee for the new vignette and requests can be submitted until the end of 2020.

Requests must be submitted by email to CIH@homeoffice.gov.uk, with REPLACEMENT 30 DAY VISA in the subject line, and including the vignette holder’s name, nationality, date of birth and GWF reference number in the body of the email.

Individuals who use this process will be contacted once VACs re-open to arrange for a replacement visa with revised validity dates to be placed in their passport. The Home Office confirmed on 15 June 2020 that the new vignette will be valid for 90 days.

The requirement for a temporary 30-day vignette to be valid at the time of entry to the UK may be waived for non-visas nationals (countries who do not appear on the visa national list), especially where their BRP has already been issued and evidence of this can be provided on entry to the UK. Please contact us for further advice on this option.

Before travelling to the UK

Aside from having the relevant UK visa in hand in order to travel to the UK, travellers must also check for any requirements to complete with local authorities. For example, Australian citizens and permanent residents must be granted an exemption before they can travel overseas. There is also a similar email process for South African nationals.

Since 8 June 2020, most international travellers to the UK must complete a Public Health Passenger Locator form within 48 hours of arriving in the UK. They must also complete a 14-day self-isolation period upon entry. For further details of these arrangements, see our main guide.

3. Sponsor compliance

As services begin to resume in the UK and it may be possible for some employees to return to work, sponsors will need to consider any notifications to be made to the Home Office via the SMS to ensure they are compliant with sponsor duties.

Right to work checks (RTW)

While social distancing measures have been in place, many employers will have made use of the RTW check options in line with the Home Office’s existing guidance, e.g. an online RTW check via video link for BRP holders. In cases where a fully compliant check has not been possible, the Home Office’s adjusted RTW guidance published on 30 March 2020 has assisted employers in maintaining compliance with their sponsor duties by allowing temporary checks using scanned copy documents.

As employers focus on a safe return to work for their employees, those who completed adjusted RTW checks will need to remember to carry out a further retrospective check in order to be fully compliant. The deadline for completion of the retrospective check is within eight weeks of the end of the adjusted procedure. This end date is to be announced by the Home Office and we will provide an update as and when this is confirmed. In the interim, employers should continue to retain a log of all RTW checks using the adjusted procedure so they can be completed in full later on. They may consider carrying out a compliant right to work check at the earliest point at which this becomes feasible, in order to reduce the number of checks to do immediately before the deadline.

Follow-up checks will also be required where Tier 2 and 5 applicants have commenced work before receiving a decision on their application in line with the Home Office concession of 14 April 2020. As an interim measure, employers should contact the Employer Checking Service to request a Positive Verification Notice to confirm a valid pending application. Once a decision on the application has ben received, employers should perform a valid RTW. If the application is refused, employers will be required to terminate employment to comply with prevention of illegal working guidance.

Sponsor employers are recommended to closely monitor progress for any sponsored workers awaiting a decision on their applications and retain any relevant evidence on file. Where follow-up right to work checks are due, a request for a Positive Verification Notice to the Home Office Employer Checking Service may be required in these circumstances. The need for this service will likely increase where processing times are prolonged and could take the applicant beyond the expiry date of their existing visa. 

Sponsor reporting requirements

For sponsored employees placed on furlough or affected by a temporary reduction in hours/salary, each change in their conditions will require further reporting on the SMS. Once any temporary measures have ended, a report should be made to confirm that hours and pay have returned to at least the same level as stated on the assigned CoS at the point of sponsorship.

With many businesses adapting to remote working, a future return to work may be more flexible, including remote working becoming the norm, both within the UK and from overseas. Although the Home Office has indicated in their guidance that remote working at a home address during the COVID-19 pandemic would not require reporting as it would be considered a temporary change to the work location, this will not continue to apply once offices have reopened. If remote working continues at this point, any alternative work location must be reported.

For new hires who have been delayed in entering the UK and impacted by expired temporary visa vignettes, sponsors will need to consider the timing of new vignette requests and subsequent reporting on the COS of any delayed work start date.

Where employees have commenced work on the basis of an assigned CoS, before receiving a decision on their application (see above – Leave to remain – switching to a new category or new sponsor), sponsors should maintain up-to-date files including records of any changes to the employee’s role and all other reportable changes. Until the application has been processed, it will not be possible to report these in the usual way.

International travel for employees

Although international travel from the UK should currently be avoided unless essential, some businesses will need to continue to rely on employees being able to travel as part of their role.

Before planning international business travel, sponsors should consider checking the health and safety status of the relevant country including transit countries, and any requirements on entry to self-isolate which could lead to longer absences from the UK. Employers should also ensure employees are not in a higher risk category with existing health conditions and that employees are aware of any requirements and restrictions in the country they are visiting such as social distancing and mandatory wearing of masks. As the status in each country has been seen to change quickly and without notice, sponsors should be mindful of any trips planned close to visa expiry dates where a delay in return could impact the possibility of visa extension and potentially trigger a cooling-off period for Tier 2 sponsored workers.

Sponsored employees should record all absences from the UK (date, country and purpose of visit) and, where the trip has been longer than anticipated due to COVID-19 travel restrictions, ensure this is recorded on file together with supporting evidence where possible. This may become relevant down the line in relation to an application for Indefinite Leave to Remain.

4. Indefinite Leave to Remain (ILR)

Applicants eligible to apply for ILR can continue to complete online submission but are required to satisfy all of the requirements in the usual way, including in some cases having to demonstrate passing an English language test or passing the Life in the UK test before their application can be approved. This has proven difficult with test centres closing at short notice in March 2020. However, there are signs of movement, with English language and Life in the UK tests resuming again this month.

Trinity College London has recommenced testing from 8 June onwards. Tests run by the British Council and LanguageCert are due to become available over the course of June.

Life in the UK tests are being reintroduced in a phased way, with bookings being taken for tests at a selection of centres from 1 June 2020 onwards. With limited availability and a queue of applicants waiting to book their tests, test dates are now booked up weeks ahead. Full details can be viewed when completing test bookings.

Applicants who are ready to submit their ILR application should note there is at present no fast track service available, so applications can be submitted using standard processing only. This means the processing time will be up to six months and applicants are not permitted to travel outside the UK until a decision on the application has been made. In time, UKVI will announce when they are able to resume priority and super priority processing.

The Home Office is taking steps to minimise processing times by contacting applicants and requesting supporting documents by return. Applicants should ensure the details provided to the Home Office are accurate and that emails are monitored to be able to respond to any Home Office requests for information.

As the course of the COVID-19 pandemic remains fluid, so does its impact on UK immigration. We will continue to provide updates as further details emerge. If you need help with any of the immigration issues arising from the pandemic, please contact a member of the immigration team.

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

Author(s)/Speaker(s): Andrew Osborne, Priya Gandhi,

New rules require most international travellers arriving in the UK from 8 June 2020 to self-isolate for 14 days. There is an exemption for cross-border workers, however how this works in practice is not straight-forward.

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The cross-border worker exemption is one of many. It applies to people who are either employed or self-employed in the UK and live in another country to which they usually return at least once a week, or are employed or self-employed in another country and live in the UK, usually returning here at least once a week. They are still required to complete a Public Health Passenger Locator Form within 48 hours of their arrival in the UK, but do not need to self-isolate.

However, the first complication is that the exemption does not apply to those whose entry point to the UK in Scotland. This is because there are four different sets of regulations governing the quarantine scheme, and whilst the regulations for England, Wales and Northern Ireland exempt cross-border workers, the regulations for Scotland do not.

In practice, what this means is that for the time-being, cross-border workers who either live or work in Scotland and spend less than 14 days in Scotland on each trip will be required to self-isolate for the entire time they are in Scotland.

Secondly, the information published on GOV.UK for exempt persons is more restrictive than the regulations when it comes to cross-border workers, stating that cross-border workers must provide evidence they travel between the UK and the other country on a minimum of a weekly basis, for example by holding a season ticket.

Because of the COVID-19 pandemic, many cross-border workers have needed to change their travel patterns, so may not be able to show that they currently travel between countries at least weekly. Contrary to what the information on GOV.UK suggests, they will still fall within the exemption if they can show that they usually travel weekly, which for some people may mean providing evidence that they routinely did this before around the beginning of March this year.

In order to figure out whether the exemption applies, it will be necessary to assess the person’s circumstances and put together evidence that shows they are a cross-border worker. That evidence will vary from person to person, but is likely to include documents relating to their accommodation in the UK and abroad, as well as their employment or self-employment and their travel between the UK and the other country where they live or work.

Eligibility will also have to be re-confirmed periodically. This is because the quarantine arrangements are being reviewed on a three-weekly basis (with the next review due by 29 June 2020) and what constitutes the person’s usual pattern of travel may shift over time.

The situation for cross-border workers is only one example of the complexities of the regulations, particularly as regards presence in Scotland. If you need assistance with interpreting the quarantine measures and how they may affect you or your staff, please do get in touch with a member of the Immigration Team.

Related Item(s): Covid 19 – Coronavirus, Employer & employee relations, Immigration

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

We recently conducted an employer survey which revealed that only 10% of respondents had made reports on sponsored workers’ conditions changing as a result of the COVID-19 pandemic.

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Although working from home has been excused from reporting duties, the survey response could indicate that some businesses may not yet have considered their sponsor reporting obligations when reducing salaries or changing roles for sponsored workers to address business needs during this time. This is understandable given the overwhelming nature of the situation, but reporting is a very important action to take if required. Alternatively, it may indicate that workers who are sponsored under Tier 2 tend to be highly valued by companies and integral to the business and therefore less likely to be furloughed or otherwise affected by salary reductions, even temporarily.  

Most employers who responded to the survey (65%) have used remote right to work checks since the lockdown began. It is likely this figure will increase as home working continues for many, with 1 in 5 respondents predicting they won’t open office until September or later. _{[C110][C111][C112][C113]} Please see our guidance for these checks in this article.

41% of employers have deferred or cancelled international assignments. Although flight restrictions remain a concern, certain visa application centres are now starting to re-open. This hopefully marks the beginning of visa processing interruptions easing. It is likely that interruptions will continue in some places, for example if future waves Covid-19 cases result in lockdown periods that force visa application centres to close again. However, the Home Office is doing what it can to avoid backlogs until normal service can resume.

Only 2% of respondents have used the exceptional in-country switch scheme, potentially missing an opportunity to do so.  

Finally, only 2% have notified the Home Office of corporate changes eg a change of Authorising Officer or corporate ownership. This figure is potentially indicating that some such notifications are being missed. It is likely that the figure will increase as more senior HR Directors move and need to pass on the role of Authorising Officer, and more companies go through ownership changes as a reflection of the volatile economic times.   

As we move forward to a time where many employers are being forced to consider making redundancies as well as permanent changes to workers’ salaries, working hours and other terms of employment, it is very important to remember that this too needs to be reported for any sponsored workers. Sponsors should also be aware that the Immigration Skills Charge must be full borne by them, despite it being acceptable for many of the fees associated with Tier 2 applications to be made subject to a clawback clause. 

If you have any questions about your sponsored workers, please contact us.  

 

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Employer & employee relations, Immigration, Immigration Solutions for HR, Tier 2 Sponsorship

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

Our fourth employer benchmarking survey looks at how employers are approaching the potential reopening of their offices as they begin to assess some of the longer-term implications of the Covid-19 pandemic.

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This is the fourth in our series of employer benchmarking surveys looking at how employers are responding to the Coronavirus pandemic. It was carried out between 27 May to 2 June and involved 70 HR leaders and in-house counsel in a cross-section of businesses collectively employing over 200,000 employees.

What did we learn overall?

It seems that employers are generally taking their time to assess the risks and consult with their employees before reopening offices. Two thirds of our survey respondents had not yet completed their Covid-19 risk assessments when the survey closed on 2 June, and only 16% said they predicted reopening offices by the end of June.

Despite mixed views about how employee productivity has been affected by the pandemic, more than half of our survey respondents say this has either remained the same or improved for employees who are now working from home. This is particularly interesting considering how many employees have been trying to juggle caring responsibilities or cope with an unsuitable homeworking set-up. It tends to confirm that employees have flexed in various ways to adapt.

Unsurprisingly, increased working-from-home arrangements and more flexibility come out top of the list of Covid-19 adaptations that employers might want to keep in the longer term. However, those employers that have already surveyed their staff to ask for their views about returning to work have not necessarily received similar responses. In some organisations, most employees want to continue working from home, but in others the majority are keen to get back to the office.

Potentially related to this, around a quarter (27%) of employers said they had seen a significant increase in mental health problems for employees working from home (more than double the percentage who reported a significant increase in physical health problems). This may indicate that mental health issues manifest themselves more quickly than physical problems, but it begs the question of whether the effort to maintain productivity may be coming at a cost to employee wellbeing.

Use of public transport is clearly a major concern for employees, with our survey respondents planning an impressive range of measures to support those who would ordinarily travel to work in this way. Alongside adjusting working hours, over one in four of survey respondents (27%) are providing or funding bicycles for employees (although only 3% are increasing showering facilities, suggesting that the new normal could be sweatier than the past). For the time being almost as many employers are banning the use of public transport to work out of health concerns (8%) as are mandating it (9%).

Looking ahead, more than a third of our survey respondents expected there to be a gap between the end of the furlough scheme in October and their ability to return to normal. Half of them predicted redundancies as one of the measures they expect to be needed to deal with this gap, which suggests that the government might be ending the furlough scheme too early. That said, many of our survey respondents have not used the furlough scheme and the majority reported no expected gap.

Some of the key results in more detail

• 32% of our survey respondents had already completed their Covid-19 risk assessments, while 64% were actively working on them. Only one employer had published the results on its external website by the time they answered our survey.
• 17% of employers who responded to our question about Personal Protective Equipment (PPE) in office environments will be asking employees to use face coverings while 17% are supplying additional PPE, for example where social distancing cannot be maintained.
• Two thirds (66%) of our survey participants are consulting employees directly over their plans to control workplace risks. Only 11% are consulting existing employee or union representatives, with the same number (11%) consulting health and safety representatives elected especially for this purpose.
• Opinion is divided about temperature checks on staff. 28% are planning to carry them out or are already doing so (for example, using non-touch thermometers). 34% are not doing or planning to do this, while the largest proportion of survey participants (38%) were undecided.
• 40% of those responding predicted reopening their office(s) in July or August. One in five (20%) do not predict reopening until September or later, with a couple of employers commenting that they did not plan to reopen until January 2021.
• Most employers (52%) have carried out surveys of employee views on returning to work, which have revealed stark differences in employee sentiment between different workforces. Some employers have a majority of staff eager to come back, whereas others have a majority wanting to carry on working from home.
• On the difficult issue of data suggesting that BAME people are at greater risk, most employers (69%) were unsure or undecided about whether to make any extra adjustments for BAME employees. Just 3% said they were proactively planning to make extra allowances for this group (an approach with significant legal minefields). 26% said they were not planning on doing so, but with many commenting that attending the office would be voluntary in any case.
• 61% are not planning to require employees who use public transport to return to work or are prohibiting them from doing so, for example because of the risks to other employees.
• Employers are taking various measures to support public-transport users, the most popular being adjusting start and finish times (81%) and changing/reducing hours of work (58%). Supporting cycling seems more popular than supporting driving, with 29% of employers increasing bike storage and 27% providing or funding bikes, but only 15% providing or funding additional car parking. Only 3% are increasing showering facilities, however.
• 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. In contrast, 11% said they had seen a significant increase in physical health problems for this group.
• There were mixed views about the effect of homeworking on employee productivity, with more than half of respondents (53%) saying it had either remained the same or improved following the shift to remote working. However, 24% said productivity was a little down or significantly down.
• More than a third (36%) of those responding to our survey expected there to be a gap between the end of the furlough scheme in October and their ability to return to normal, with half predicting redundancies as one of the measures they expect to be needed to deal with this gap.
• Covid-19 has impacted the immigration landscape, with more than 60% of respondents having to implement remote right to work checks and 40% cancelling or deferring international assignments. Interestingly, only 10% of survey respondents had made reports for sponsored workers about salary or hours changes. This could indicate that sponsored workers have been largely unaffected, or that employers may not yet have got to grips with the issues that should be reported for sponsor licence compliance purposes.

The full results of the survey, including answers to some additional questions, are shared only with those who participated.

For an infographic summarising the key conclusions, click on the image below.

Related Item(s): Employment, Covid 19 – Coronavirus, Employer & employee relations, Health & Safety and reintegration, Re-opening workplaces

Author(s)/Speaker(s): James Davies, Gemma Taylor,

When businesses run into financial difficulties and need to reduce costs, the knee-jerk reaction is often to consider the scope for job cuts.

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Introduction

But redundancies are not a cheap option and , if mistakes are made in the way redundancies are handled, further costs may be incurred on account of tribunal claims. Other drawbacks include the loss of valuable skills and experience and the negative impact on the morale of the staff that are retained.

Employers should therefore think creatively and look at other alternatives that may better suit the needs of their business. This Inbrief summarises some of the options and examines how to avoid falling foul of the legal procedures and obligations that might come into play.

The content includes:

• Changing terms and conditions

• Pension scheme changes

• Lay-off and short-time working

• Redeployment, secondment and sabbaticals

• Recruitment freezes

• Flexible working

Changing terms and conditions

Perhaps the most obvious way to reduce business costs without resorting to dismissals is to adjust employees’ contractual entitlements — for example, an across-the-board pay cut.

The legal starting point is that employees’ pay, benefits and working hours will most likely be express terms of the contract of employment. Even where terms of this nature are not expressly set out in writing, they may be implied into the contract by ‘custom and practice’. In addition, terms may sometimes be incorporated into individual contracts from sources such as company policies or work rules.

Any significant change to working arrangements is therefore likely to require the variation of employees’ contracts of employment. Depending on the circumstances, even a pay freeze, for example, or a restriction of overtime working might entail changes to contractual terms and conditions.

Changing terms and conditions is fraught with legal dangers and employers should proceed carefully and generally take legal advice before embarking on such a course. In outline, these are the main options:

• changes allowed by the contract

• variation by mutual agreement

• unilateral imposition of new terms

• terminating employees’ contracts and re-engaging them on new terms

Changes permitted by contract

The best scenario for the employer is that the change it is proposing is authorised by the contract of employment. This can arise in different ways. The contractual term in question may, for example, be drafted sufficiently broadly to accommodate the change.

Alternatively, the contract may include a ‘flexibility clause’ – an express right for the employer to implement changes. This could either be a specific clause covering the proposed change or a general power for the employer to vary the terms of the contract.

The presence of a flexibility clause does not necessarily mean the employer can proceed with impunity. Clauses of this type are interpreted restrictively by courts and tribunals and any ambiguity will be resolved against the employer.

In addition, the way in which a flexibility clause can be operated may be restricted by general implied terms of the employment contract – in particular, the implied duty of mutual trust and confidence. This may, for example, require the employer to give staff reasonable notice of any changes.

In organisations that are unionised, changes to terms and conditions are usually negotiated with the relevant trade union. This is another situation in which the changes are likely to be permitted by individual employment contracts, because there is normally a clause catering for collectively agreed changes to be automatically incorporated into the contract. Nonetheless, the union will generally obtain employees’ agreement before accepting the employer’s proposed changes.

Variation by agreement

Where the employer has no right to impose unilateral changes, clearly the best route is to obtain employees’ consent. Faced with the option of agreeing detrimental changes or potentially being made redundant, many employees are likely to be amenable albeit reluctantly.

Full and effective communication and consultation, so that employees fully understand the business needs behind difficult decisions, is a crucial factor in securing agreement. This can be done via staff briefings and meetings but it is best also to offer individual consultation on a one-to-one basis.

It is essential to obtain employees’ individual written agreement to changes, in order to avoid future disputes.

Unilaterally imposing changes

What should an employer do in respect of employees who, following consultation, still refuse to agree to the change required? One option is simply to announce that the change will be implemented from a set date.

This is a risky strategy from a legal perspective. Imposing the change as a fait accompli will amount to a breach of contract by the employer. This runs the risk that employees may:

• continue to work in accordance with the changed terms, but under protest — reserving the right to sue for breach of contract and/or bring a claim for unlawful deduction from wages

• resign and claim constructive dismissal

• refuse point-blank to accept the new terms

In the third scenario the employer would have little option but to dismiss, potentially giving rise to tribunal claims for unfair dismissal from employees who have at least the two years’ service.

The best outcome for employers adopting this type of approach is that employees would simply acquiesce in the new working arrangements and go along with them. After a period of time, the legal position would be that such employees had impliedly agreed to the variation by their conduct.

Dismissal and re-engagement

Generally speaking, a better way to proceed where employees’ agreement to contractual changes is not forthcoming is to terminate their existing employment contracts – giving the required statutory or contractual notice – and offer to re-engage them on new contracts containing the revised terms.

This may seem like a ‘nuclear option’, but it at least avoids the risk of employees suing for breach of contract. Because the employment contract is lawfully terminated with notice, the employer is not in breach.

Employees with at least two years’ service will, of course, be entitled to claim unfair dismissal. However, the employer can defend such claims by showing it had a ‘substantial reason’ for dismissal – namely, its pressing business need to introduce the changes in question. The employer would argue that it adopted a fair procedure by consulting fully over its proposals and acted reasonably in the circumstances.

Importantly, the employer’s legal duty to consult collectively may be triggered in these circumstances. A proposal to dismiss and rehire in the context of changes to terms and conditions counts as ‘redundancy’ for collective consultation purposes. Accordingly, if 20 or more employees will be dismissed within a 90-day period, the employer must consult with the recognised trade union if there is one, or elected employee representatives otherwise. (See our Inbrief Collective redundancies.)

Pension scheme changes

Another option for employers that may appear attractive is to change its pension arrangements.

Employers should bear in mind that most changes will require them to consult with employee representatives, under special consultation requirements applying to pension schemes (although some smaller schemes are exempted).process is broadly similar to the collective redundancy consultation process, but the obligation to consult is not restricted to changes affecting a particular number of employees. The consultation period must last at least 60 days.

Lay-off and short-time working

Employers looking for alternatives to declaring redundancies may consider laying staff off temporarily or reducing their working week. A lay-off is generally understood to mean an employer providing employees with no work – nor pay – for a week or more. Short-time working occurs when an employee works only part of a week and receives proportionately reduced pay.

If the employer has no contractual authority to impose a lay-off or short-time working, the considerations in relation to changing terms and conditions described above will apply. In particular, unless employees’ express and informed consent is obtained, the employer will potentially face claims for unlawful deduction from wages, breach of contract and constructive dismissal.

There is specific legislation governing temporary lay-offs and short-time working, but it is complex and little-used in practice. It provides a right for employees who have been laid off or kept on short time for four or more consecutive weeks or six weeks in any 13-week period to claim a redundancy payment in certain circumstances. The scheme only applies where the contract of employment allows for lay-off/short-time working without pay.

Finally, there is a very modest statutory wage protection scheme for employees who are laid off without pay. They can claim a ‘guarantee payment’ for days on which they would normally be required to work, but the maximum is only £29.00 per day and entitlement is limited to five days in any three-month period.

Reducing use of contract workers

Dispensing with the services of casual workers, agency staff and self-employed consultants may be a relatively low-risk way to reduce employment costs without making ‘permanent’ staff redundant. The employment status of such individuals should, however, be carefully assessed in case they legally qualify as ‘employees’ with statutory rights such as statutory redundancy pay and unfair dismissal.

Employers should also be careful when terminating part-time or fixed-term staff. They are protected from less favourable treatment in comparison to (respectively) full-time and permanent colleagues, unless it can be objectively justified by the employer.

Discretionary benefits

Employment contracts often describe bonuses and other benefits as being non-contractual or ‘discretionary’, implying that the employer is entitled to withhold or reduce them. Such contractual provisions do not, however, give the employer carte blanche or mean they are immune from legal challenge.

For example, an employer should be in a position to demonstrate that it has not exercised a contractual discretion arbitrarily or irrationally. Alternatively, employees may be able to argue that they have a legitimate expectation of a bonus or other benefit as a result of custom and practice, giving rise to an implied contractual right.

Redeployment, secondment and sabbaticals

A good way of retaining key skills and avoiding redundancies is to redeploy affected staff elsewhere within the organisation wherever possible, or alternatively arrange for them to be seconded to other companies.  Once again, this will need to be done with the employee’s consent in the absence of an express right to redeploy or second in the contract of employment.

A sabbatical, or career-break, is not a legal concept, but simply time away from work. Many employers operate discretionary schemes, which can be paid, part-paid or unpaid. Staff who can afford time off work and who are perhaps seeking an opportunity to change their lifestyle are offered an extended period of leave, with the promise of a job on their return. Continuity of employment is generally preserved during a sabbatical, for both statutory and contractual purposes.

It would be unusual for a sabbatical or career-break policy to provide for the employer unilaterally to enforce their use, as this would effectively amount to a right to lay off without pay (see above).

Recruitment freezes

A freeze on recruitment is an obvious and straightforward way of reducing overheads without fear of legal consequences, especially in industries with high rates of staff turnover.

Recruitment deferrals may be another option, although employers need to proceed with caution if they already have committed themselves to a particular start date.

Flexible working

Introducing part-time working or job-sharing can sometimes be a feasible way of reducing costs. The incentive of improved work-life balance may mean some employees would welcome the opportunity to enter into such arrangements. If so, the employer should seek their consent and the details of the new working regime should be clearly set out in writing.

Another cost-saving option may be to encourage employees to work flexibly or remotely, for example at home. Similar issues arise here as in relation to other changes to terms and conditions (see above). Where employees’ consent is not forthcoming, the employer can seek to rely on any flexibility clauses in the contract or consider terminating and re-engaging on new terms as a final resort.

Practical issues to consider include: monitoring and recording core hours; access to IT systems and equipment; and health and safety.

Immigration issues

Where employers are considering redundancies, or alternatives such as lay-offs or salary reductions), they should assess whether this has any effect on the immigration status of any of the employees affected. Any of them who holds a Tier 2 or 5 visa will have reporting requirements that are likely to be triggered, which may then have knock-on implications for whether they can keep their visa or not. Lewis Silkin’s dedicated immigration team can assist you in navigating this part of the process.

Type: Inbrief

Related Item(s): Employment

Author(s)/Speaker(s): Russell Brimelow,

Attachment: Reducing business costs – alternatives to redundancy_

In this article for HR Magazine, Naomi Hanrahan-Soar comments on how the government’s immigration bill can be seen as hypocritical for its proposal to end ‘unskilled’ immigration in December, ignoring the fact that many low-earning key workers are EU nationals.

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Click here to read the article.

Type: Press

Related Item(s): Immigration & Global Mobility, Tier 2 Sponsorship, Covid 19 – Coronavirus

Contributor(s): Naomi Hanrahan-Soar

A general tightening of the requirements and restrictions of the sole representative category will be brought into effect from 6 June 2020.

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It’s a shame to bring in any changes to the sole representative visa. It is one of the ‘old-school’ categories that functions well and has been around since before 2008 when the Points-Based System was introduced.

This route works so well because the principal requirements are fairly simple and not too prescriptive. In essence, it is designed for bringing in a senior employee of an overseas business so that they can set up a branch or wholly owned subsidiary in the UK. The sole representative can’t be a majority shareholder in the overseas business, the business cannot already have an active branch, subsidiary or representative in the UK and the headquarters must remain outside the UK.

The new restrictions are aimed at addressing potential abuse of this route. On the face of it, they are still in the spirit of the existing requirements. But they do add more complexity, more restrictions and requirements.

One of the more significant changes is the introduction of a restriction that a person who has a majority stake in, or who otherwise owns or controls the overseas business cannot enter as the partner of a sole representative who is representing the business they own. By introducing this restriction, the Home Office intends to stop entrepreneurs from in effect relocating their business to the UK. It is also likely that more generally, the Home Office also wishes to ensure the sole representative route is not used as a loophole category to avoid the much more stringent requirements of the Start-up and Innovator categories.

Other additions require that the sole representative must genuinely intend to set up the UK entity of the business and not be using the visa to facilitate entry to the UK; that the overseas business is already active and trading and that the sole representative has the skills, experience and knowledge to represent the overseas business in the UK. These were all in the previous Rules in spirit or in the associated guidance.

In sum total, these changes will likely just make applications a little harder, with more requirements to evidence and more ways the caseworker can refuse applicants based on their own assessment of capability and genuineness. For instance, the old entrepreneur route had particular difficulties due to the Home Office assessing whether a business plan was realistic or not. It may not work well to have civil servants assessing whether the individual has the skills, experience and knowledge to take on the set-up of the UK business. It remains to be seen how heavily genuineness will come to be relied upon as a refusal reason, but applicants should be aware that this element of their application will be scrutinised both in terms of the supporting documents submitted with the application, and at interview if one is requested.

This is still a really useful route to the UK for the right applicant and the right business. If you think that this category could be relevant to you, do get in touch.

Related Item(s): Immigration & Global Mobility

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