COVID-19: Immigration FAQs for Employers

On 24 March 2020, UK Visas and immigration introduced special measures to take account of the Coronavirus outbreak and to alleviate the effects for those who have visas expiring in the next few months. We set out below some frequently asked questions about these measures and also other important immigration issues which employers are asking about in light of the Coronavirus outbreak.

We are a licenced sponsor. In line with UK Government guidance, we now have all of our staff working from home (including our sponsored workers). Do we need to report this to UKVI as their place of work has changed on a temporary basis and what if we make other changes to Tier 2 sponsored employee's jobs as a result of Coronavirus (COVID-19)?

Where a sponsored worker is temporarily required to work from home in these circumstances, you are not required to report this on the Sponsor Management System as a change of circumstances.However, any permanent change to place of work does need to be reported so please keep that under review if it becomes long term.

In addition, employers should remember that any change to a sponsored worker's job title, salary or working hours all need to be reported through the Sponsor Management System. Significant changes to a Tier 2 employee's job role which involves a change in Standard Occupational Classification (SOC) code would involve a change in employment application (and may require the resident labour market test to be carried out before the employee could commence a new role). A redundancy would, of course, require to be reported to UKVI within 10 days of the termination of the contract.

We have an individual currently in the UK under a visitor visa for the purpose of business activities. What will happen if they are unable to leave the UK at the expiry of their visa due to COVID-19 travel restrictions or due to having to self-isolate?

On 24^th March 2020, the UK Government announced several temporary immigration measures to be put in place for individuals affected by travel restrictions and periods of self-isolation associated with coronavirus. Under these provisions, those who have UK visas which are due to expire between 24^th January 2020 and 31^st May 2020 and cannot leave the UK at the end of their visa expiry due to COVID-19 travel restrictions or because they are self-isolating are likely to be given a visa extension to the 31^st May 2020 if they apply.

The UK Government have created an online application form for such requests. There is nothing which employers need to do in relation to this. However it is helpful for employers to be aware of the process in case they are asked any questions from employees or any business visitors currently visiting their UK office. This form should only be used where the individual was not otherwise intending to apply to extend their leave. If an individual was planning to extend their leave they should apply using the usual forms.

It is important that when completing the online application, the individual ensures their email address is entered correctly as correspondence about the extension will all be carried out via email. A response should be received within 5 working days.

UKVI recommend that individuals take a screenshot of the completed form before submitting the application, for their own records.

Employers who have business visitors or employees currently in the UK under Tier 5 visas (such as the Youth Mobility sub-category) whose visas are about to expire may wish to inform them of this option.

Employers may also wish to carry out an audit of any employees who have visas that may expire prior to 31 May 2020 to consider whether a visa extension may be necessary as a result of COVID-19. We can advise further depending on the type of visa concerned and the reason that the extension is needed. Please contact us for more information.

We have an employee who is currently in the process of extending their Tier 2 visa – will they be able to continue doing this despite the recent lockdown restrictions? What will happen if an employee's visa expires and they have not been able to make an extension application?

At the moment, all UK visa processing centres have closed.

As mentioned above, the UK Government announced several temporary immigration measures for those in the UK with visas due to expire between 24^th January 2020 and 31^st May 2020. Under these measures,individuals who have a visa which is due to expire in this period and who intend to extend their visa, should be issued a Certificate of Sponsorship and make their online visa application as normal. At the moment, these individuals will not be able to attend a processing centre with their supporting documents or to have their biometric information taken. However, if they make the online application in time (i.e. before their current visa expires), then they can continue to work for their employer as normal. The employer should be satisfied that an in-time application has been made (i.e. the online form was submitted before the expiry of the individuals current leave) and then should use the Employer Checking Service to obtain a Positive Verification Notice for right to work purposes. Guidance on how to do this can be found in the Government Right to Work Guidance.

Once the processing centres re-open, the applicant should attend the procesing centre and submit their documents in the usual way. If the individuals visa is rejected, the employer should stop employing them immediately.

Are UK visa processing centres still open outside the UK?

All UK visa processing centres have closed.

We sponsor migrant workers though our sponsor licence. We intend to utilise the Government's newly announced Job Retention Scheme for our staff (Furlough Scheme). Do we need to report to UKVI that our sponsored workers will have a temporary change in their salary (being 80% of their salary)?

The rules in place do permit a migrant worker to be paid 80% of their salary (subject to the cap of £2,500 per month) on a temporary basis. However, this is only permitted where the employer has "temporarily reduced or ceased trading".

The current guidance is that any reductions in pay must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. Also, the reductions must be temporary, and the employee's pay must return to at least the previous levels once these arrangements have ended. These conditions are narrower than the conditions in the Furlough scheme.

This means that where the above criteria are met salary reductions will be permitted even where that takes the employee below the standard thresholds for that job or that visa category so long as this is a temporary measure.

Changes to salary remain to be a circumstance which should be reported to UKVI through the Sponsor Management System in the usual way within 10 working days of the change. We recommend legal advice is sought where an employer is considering furloughing migrant workers as the rules are technical and complex.

How do we conduct a follow-up right to work check for those who have been granted visa extensions under the new government measures (due to the expiry of their initial leave)?

As mentioned above, those who have visas due to expire between 24th January 2020 and 31st May 2020 and cannot leave the UK at the end of their visa expiry due to COVID-19 travel restrictions or because they are self-isolating are likely to be given a visa extension to the 31st May 2020.

As above your employee will be contacted within 5 working days of applying for an extension but we understand that updated Biometric Residence Permits will not be issued as standard.

As mentioned above, employers should use the Employer Checking Service to obtain a Positive Verification Notice for any employees seeking an extension to their visa under the new temporary measures. Guidance on how to do this can be found in the Government Right to Work Guidance.

How do we carry out right to work checks remotely when there is no-one in the office to meet the employee in person?

Right to work checks continue to be necessary during the pandemic however, there have been temporary adjustments to how these should be conducted. Changes to right to work checks were effective from 30 March 2020. Under these temporary measures employers should take the following steps:

1. Have the worker(s) submit scanned copies of the original documents electronically.
2. Have a video call with the worker(s) and ask that they hold up the original documents to the camera so that you can verify these documents are the same as the scanned documents received.
3. Employers should then make a record of the date on which you conducted this check, noting that this was an "adjusted check undertaken on [date] due to COVID-19".
4. For worker(s) who have a current Biometric Residence Permit, Biometric Residence Card or status under the EU settlement Scheme employers can utilise the online right to work checking service during the video call.

Where the worker(s) cannot show their documents via the above method (for example, because they are with the Home Office) employers must contact the Home Office Employer Checking Service. Guidance on how to do this can be found in the Government Right to Work Guidance.

Once these measures come to an end, employers will be required to conduct retrospective right to work checks in the normal way for all employees for whom checks were carried out under the temporary measures. These checks will need to be carried out within 8 weeks of the temporary measures coming to an end. It is important that employers diarise ahead to ensure these checks are carried out.

We expect that we will need to sponsor EEA citizens under the new single skills system following the end of the transition period. Is it still the intention that this will come in to effect in January 2021?

Presently, the transition period is due to come to an end at 11pm on the 31^st December 2020 and the new single skills system to be effective from the 1^st January 2021.

Recently published guidance from the UK Government suggests that there will be no extension to the transition period and that the new points based system will open as planned on the 1^st January 2021. Applications can be made under the new scheme from the autumn 2020. We recommend that employers apply for a sponsor licence now if they do not already have one in order to avoid delays that may arise due to COVID- 19. Also employers should still continue to encourage employees to apply for settled or pre-settled status as there could also be a backlog of applications/ delays in the future.

Please get in touch with your usual Brodies contact if you have any questions relating to the immigration law implications of the Coronavirus outbreak.