UK immigration repercussions for businesses amid COVID-19

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Boris Johnson Hereford County Hospital 11 August 2020

Pippa Fowles / No 10 Downing Street

Comments by Sanwar Ali:

There are still a number of important concessions for migrants in the UK due to coronavirus COVID-19.  You can in many cases apply to remain from within the UK when previously this was not possible.   The ridiculous documentation requirements for Tier 2 Sponsor licence applications for employers has been eased.  You can now send documents via email.  Previously, it was a huge burden for employers to meet the confusing and complicated requirements for certifying documents.  In the internet and email age original documents are frequently either unavailable or difficult to obtain.

Tier 5 Youth Mobility visa applicants who previously were unable to switch to a Tier 2 visa can now do so.  Before the coronavirus COVID-19 pandemic it was a real nuisance for many applicants who typically had to fly back to Australia to apply for a Tier 2 visa.  Lets hope that the current situation also means that there will be fewer unnecessary site visits to employers before issuing a Sponsor Licence.  Expecting employers to understand hundreds of pages of frequently confusing Home Office documentation is unreasonable.

UK employers and educational institutions have faced significant immigration law challenges amid restrictions on global movement due to the coronavirus pandemic. With countries across the world, including the UK, shutting down their borders, British businesses and universities have struggled to recruit international talent and enrol students.

In an effort to ease the strain, the Home Office introduced several UK visa and immigration concessions. However, as countries start to re-open their borders, the Home Office recently announced – on 29 July – that most of the concessions will come to an end.

Foreign nationals will no longer be able to automatically extend their UK visas and will now need to make every effort to leave the country, where possible, or apply to settle in the UK.

Home Office coronavirus guidance

The Home Office has issued guidance on immigration provisions for UK visa applicants and temporary residents. The agency has set up a coronavirus hotline that UK employers can call to speak to the Home Office regarding an international employee’s individual circumstances.

Employers will need the written permission of an employee to contact the Home Office. The number to call is 0800 678 1767 or an email can be sent to CIH@homeoffice.gov.uk

Meanwhile, most UK Visa and Citizenship Application Centres (UKVCAS) have resumed services for existing clients. It’s recommended that individuals check the UKVCAS website to check which centres have reopened. Some centres based overseas have resumed priority and super priority services.

Information for UK visa holders in Britain

The Home Office has announced that anyone unable to leave the UK because of coronavirus whose visa has or is about to expire, will not be classified as an overstayer or be penalised on future UK visa and immigration applications.

Under a previous concession, the Home Office allowed people, whose visas expired between 24 January and 31 May 2020 to extend their visas to 31 July. On 29 July, the Home Office announced a ‘grace period’, which automatically extends visa validity to 31 August, giving people time to arrange to leave the UK or apply for an alternative visa.

It’s understood that those affected will no longer have to fill out the Coronavirus Immigration Team’s (CIT) online application to extend their UK visa. The form required a reason for extending a visa. Furthermore, those who qualify for the grace period will not be informed that they are in it until 31 August.

After 31 August, automatic UK visa extensions will not be available.

The Home Office did confirm that conditions applicable to a UK visa will remain the same for those staying in the UK from 1 August to 31 August. This means individuals can continue to study, work and rent property up until their departure from the UK.

Remaining in the UK after 31 August

The Home Office has announced that ‘exceptional indemnity’ will apply to individuals who intend to leave the UK, but are unable to do so after the grace period ends. A request for additional time to remain in the UK can be made with the CIT. The CIT will offer advice on what individuals will need to do to apply for extra time in the UK.

Individuals will need to provide a valid reason why they are unable to leave Britain, which will require supporting evidence. The Home Office deems valid evidence to be a positive result from a coronavirus test or confirmation of a flight with a date that’s after 31 August 2020.

It’s understood that a smart form will be used for indemnity requests. The Home Office hasn’t specified whether any supporting evidence will be necessary for an indemnity request. However, this is subject to change.

From 31 August, it is unknown what an individual’s legal immigration status will be while a decision is made on an application for indemnity. This could affect an individual’s right to work or study during this period. Individuals are being urged to ensure that indemnity is right for them rather than extending their current visa or switching to another.

UK visas for frontline NHS workers

On 31 March, the Home Office issued new guidance for frontline NHS workers, and their families, stating that those with visas expiring between 31 March and 1 October 2020 would be granted an automatic 12-month extension.

However, the legal basis for this isn’t clear, but it’s understood that the extension does not have to be requested and will be applied automatically. The initial guidance only applied to NHS doctors, nurses and paramedics. The rule was then extended to include biochemists, physiotherapists, therapists, social workers and many more on 1 May.

The updated legislation means that individuals employed by the NHS or an independent sector can apply for a visa extension. Extensions will apply to any person affected and not just those who hold a Tier 2 or Tier 5 visa.

Frontline workers are also permitted to work at any UK hospital during the pandemic, provided that their sponsor can adhere to their sponsorship duties and no update is required on the sponsorship management service (SMS), notifying the Home Office of an employee’s location.

Additional work can be undertaken by frontline workers in any role and at any skill level during coronavirus. The number of hours they are allowed to work is unrestricted.

The deadline for pre-registered nurses, who must take their first skills test within three months and pass the test within eight months, will be extended to the end of 2020. Should an individual fail the exam at the first attempt, they will have up until 31 May 2021 to achieve a pass.

The Home Office has stated that original visa terms and conditions will remain in place where a person qualifies for a UK visa extension, automatically or otherwise. However, the legal basis for this unclear. It’s recommended that those whose visa is set to expire should apply to extend or switch to another visa if they’re eligible.

Switching UK visas

Concessions are in place to allow individuals who would normally have to leave the UK to switch visas to change visa category while still in the country – for example, in limited circumstances people switching from a Tier 2 intra-company visa to a Tier 2 (General) Visa. However, it should be noted that the other requirements still remain in place.  In reality probably only a few people can benefit from this, for example Tier 2 intra-company spouses wishing to apply for a Tier 2 General visa.

The Home Office did extend the provision on 29 July for some individuals whose visas expire after 31 August for those whose circumstances are deemed ‘urgent’ – for example, starting a study course or new job or anyone who is unable to leave the UK and apply from overseas. However, this provision was then removed from the guidance altogether shortly afterwards.

Other eligibility criteria for switching UK visa categories will remain in place, including the cooling off period. Until a decision on an application to switch visa category is made, the Home Office has stated that individuals can still benefit from the terms of their leave to remain.

In some instances, those who have applied to switch to a UK work visa or study visa can start work or study while a decision is made.

Biometric requirements

Biometrics submitted as part of a previous application can be used as part of any new application made by an individual, the Home Office confirmed on 2 July. Instructions will be sent by the Home Office to applicants on how to submit facial images and any supporting documents.

Visa service centres

Most UK visa service centres have reopened to applicants applying within the UK. However, appointment availability is currently limited.

Work and student sponsorship

The Home Office published guidance on temporary provisions for Tier 4 student visa holders on 20 April. Concessions are expected to be withdrawn ‘once things return to normal.’

Where concessions are applicable to international students, an accurate record must be kept on their file, with details included in their Certificate of Acceptance for Studies (CAS) evidence or in the sponsor notes section.

To switch to a Tier 4 visa from another route, the following should be considered:

  • It’s possible to switch from other visas – including UK visit visas and short-term study visas – if an individual arrived in the UK on or prior to 31 July. Additional qualifying criteria must be satisfied, and the concession is only available until 1 October, at which time it will be reviewed.

Starting studies prior to visa approval

  • On 14 April, the Home Office introduced a provision allowing new, Tier 4 student visa applicants to start studying before their visa was approved.

Long-distance learning

  • The Home Office has reassured Tier 4 visa sponsors that they will not be penalised or in violation of their duties by offering distance learning to students currently in the UK or those who have opted to return to their home country and wish to carry on their studies. Sponsorship will not have to be withdrawn and long-distance teaching will not have to be reported to the Home Office.
  • For the 2020-21 academic year, Tier 4 visa sponsors are permitted to start sponsoring new students whose classes will be delivered entirely online or as a mix of virtual and in-person. This is on the condition that they move to full in-person teaching when circumstances allow.
  • Course start dates specified on a CAS can be the date on which a course starts using distance learning or the date a student intends to start learning in the UK.
  • Tier 4 sponsorship will not be necessary for international students who opt to take online classes outside of the UK.
  • Sponsorship must be withdrawn if a student fails to engage with distance learning for more than 30 days, whether they’re based in the UK or overseas.
  • Distance learning concessions will be active for the duration of the 2020-21 academic year.

International student absences

  • For absences, Tier 4 visa sponsors will not be subject to enforcement action if a student is absent because of coronavirus. Absences under these circumstances do not need to be reported – including illness, self-isolation or travel restrictions.
  • Sponsors do not need to withdraw sponsorship if a student is absent for a period exceeding 60 days. However, a record of all absences must be kept.

Monitoring attendance

  • Contact points that are missed by international students don’t need to be reported. However, contact online should be maintained as far as possible when distance learning is taking place.

Tier 4 visa extension

  • International students are allowed to extend their Tier 4 visa in the UK, provided that their application is submitted prior to the expiration of their current visa, by August 31 if granted an extension, or by 1 October if indemnity has been granted.
  • Additional criteria must be met in order for leave to remain to be extended.
  • International students are required to apply for a course that starts no more than 28 days after their current visa validity expires. The Home Office has said that it will exercise discretion if the start date specified on the CAS is no later than 31 December 2020.
  • Tier 4 visas can be extended in accordance with the Home Office’s existing general policies. International students that need to repeat a year, retake a module or resit an exam are exempt from academic progression rules.
  • Home Office discretion will be applied should an application for a Tier 4 visa extension take an individual over the normal maximum duration of stay in the UK on a Tier 4 visa.

English language requirements

  • Most English language testing centres remain closed. Self-assessment of English language abilities can currently be carried out by higher education establishments. A record of how testing was carried out must be kept.

Reporting for Tier 2 and Tier 5 visa sponsors

  • Many Tier 2 visa and Tier 5 visa holders continue to work from home. Under normal circumstances, this would have to be reported to the Home Office within 10 working days as a ‘change of circumstances.’ However, current concessions mean that Tier 2 and Tier 5 sponsors don’t have to report home working, but other changes must be reported in the usual way.

Absences

  • Similar to Tier 4 visa sponsors, Tier 2 and Tier 5 sponsors do not need to report absences if employees are absent due to coronavirus. The Home Office has confirmed that Tier 2 sponsor licence holders will not be penalised or be subject to enforcement action.
  • Sponsorship does not need to be withdrawn should an employee be absent from work, without pay, for a period exceeding four weeks. A record of absences must be kept.

Furlough for Tier 2 visa holders

Guidance for furlough in respect of Tier 2 visa holders was initially delayed, but the Home Office did eventually publish information on 2 April. According to the guidance:

  • Tier 2 visa sponsors unable to pay the salaries of foreign employees due to reduced trading or closure can reduce the amount paid to employees to 80% of their salary or £2,500 per month, whichever is the lowest.
  • Any reduction in salary must be as part of a company-wide policy to avoid redundancies and treating all staff equally.
  • Salary reductions must be temporary and pay levels must return to the previous salary amount or more once furlough ends.

It’s unclear whether any change in salary has to be reported to the Home Office. Employers are advised to report salary changes to avoid being penalised as they would have to be reported under normal circumstances.

Expiring Certificates of Sponsorship and CAS

According to Home Office guidance, any Certificate of Sponsorship (CoS) or CAS issued to an employee or student who has not yet applied for a visa, can still do so. In cases where employment or course start dates have changed, the Home Office will not automatically refuse visas.

This means that the Home Office may still grant a work or study visa even if a CoS or CAS has expired because an individual was unable to travel because of COVID-19.

Sponsoring Tier 2 and Tier 5 visa applicants not yet approved

Employees who have applied for a Tier 5 or Tier 2 visa, but have not been approved, are permitted to work, according to current Home Office guidance. This is provided that all conditions have been met, including:

  • Possession of a CoS from their sponsoring employer
  • A visa application was submitted prior to the expiration of their current visa
  • The role for which an employee is employed is the same role specified on their CoS

Right to work checks

In response to the coronavirus pandemic the process for employers carrying out right to work checks has been temporarily changed. From 30 March 2020, the following changes apply:

  • Video calls can be used to carry out checks
  • Scanned documents or images of documents can be sent by job applicants or existing employees to verify information, rather than having to send originals
  • If an employee cannot provide documentation, employers are urged to use the online Employer Checking Service to verify an employee’s right to work in the UK

30-day entry clearance

Sponsoring employers should consider that some visa applicants may be unable to travel because their passport is being held by a UKVCAS that is currently closed. Under normal circumstances a sponsored employee would be issued with a 30-day entry clearance vignette.

However, employees may not be able to come to the UK within the 30-day period. The Home Office recently confirmed that a replacement vignette can now be requested, with adjusted validity dates, free of charge until the end of the year. Replacement vignettes will be valid for 90 days.

Overseas employees

Although many overseas UK visa application centres and English language testing centres have reopened, inevitably there will be delays because of the backlog.

If a company is trying to bring in an employee from overseas, restrictions in that country should be monitored, especially if an employer has issued a CoS, because an employee must apply for a visa within three months or the CoS will expire.

It’s understood that the Home Office will review applications from overseas on a case by case basis.

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