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Coronavirus and immigration implications for employers and sponsors – FAQs

The spread of COVID-19 around the globe is having significant effects on the immigration system and businesses are already having to take action to minimise the economic effects of the crisis.

In light of guidance that has been released by the Home Office, this page answers some frequently asked questions you may have as an employer, especially if you are a sponsor.

What effect does the current crisis have on any right to work checks I may have to carry out?

As of 30 March 2020, right to work checks can now be carried out via video calls. Employees can submit a copy of their passport or ID rather than the original, and verify it by showing you the original on a video call.

The process for conducting a right to work check during the Coronavirus pandemic is as follows:

Ask the employee to submit a scanned copy or a photo of their original documents via email or using a mobile app.
Arrange a video call with the employee.  Ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call. The applicant must give you permission to view their details.

If the above is not possible, you can use the Employer Checking Service.

It should be noted that, when the crisis over, employers will have to re-check people hired under the above temporary right to work check procedure.

What do I do if the Tier 2 employee or Tier 4 student I am sponsoring is absent?

Sponsors are not currently required to report any absences from students or employees sponsored under Tier 2, Tier 4, or Tier 5 (temporary workers), where those absences have been the result of the consequences of the Coronavirus outbreak. This can include absences due to illness, the need to self-isolate or the inability to travel due to travel restrictions.

Unlike normal, sponsors will not be required to withdraw sponsorship for affected students who have been unable to attend for more than 60 days or for employees who have exceeded four weeks of absence without pay.

The relaxation of these requirements is being kept under review by the Home Office. We would recommend that sponsors keep some evidence (for example, email communication with the individual) to demonstrate that the period of absence was due to Coronavirus related concerns.

Can I continue to sponsor a Tier 4 student who is distance learning?

Yes. Tier 4 students are now permitted to do distance learning (whether they are in the UK or another country). You do not need to inform the Home Office when students have moved to distance learning. However, if they withdraw form their course altogether (or defer for reasons unrelated to the coronavirus pandemic), this must be reported on the Sponsorship Management System as usual.

These arrangements will apply until 31 May 2020 when they will be reviewed by the Home Office.

Do I need to inform the Home Office if an employee I am sponsoring under a Tier 2 visa is now working from home in line with government guidance?

No. Tier 2 and Tier 5 sponsors do not need update the Home Office if workers are now working from home provided that the switch to home working is because of the pandemic. However, other changes to their working arrangements must be reported on the Sponsorship Management System as usual. In addition, you should also ensure that you continue to be able to monitor attendance at work as part of your other ongoing sponsor reporting and monitoring duties.

I have issued a Certificate of Sponsorship (CoS) but the sponsored employee has not yet applied for their visa. Will they still be able to apply?

Yes. The start date for employment stated on the CoS may have changed but the Home Office has confirmed that they will not automatically refuse such cases. For example, they may accept a CoS if it has become invalid because the employee was unable to travel as a result of the Coronavirus pandemic. All cases will be considered on an individual basis.

Can I temporarily reduce the pay of my Tier 2 sponsored workers?

Yes. In an update to the guidance on 3 April 2020, the Home Office has stated that employers can temporarily cut the pay of sponsored employees to 80% of salary or £2,500 a month (whichever is lower). Although this is not specifically stated, the implication is that if the employee’s salary drops below the minimum salary required (either £30,000 or the minimum required under the employee’s SOC code), sponsorship will not have to be withdrawn as it usually would be.

The guidance states that any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.

Can I put my Tier 2 employees on furlough leave under the government’s Coronavirus Job Retention Scheme (CJRS)?

The Home Office has not given specific guidance on how the furlough scheme may apply to those on Tier 2 visas. However, they have confirmed that foreign nationals are eligible to be furloughed.

An employer can put an employee on furlough leave (usually as an alternative to redundancy) and then reclaim 80% of their wage costs (up to a maximum of £2,500) from the government under the CJRS. Employees on furlough leave can do no work for the employer but remain employees throughout this time. Furlough leave is for a minimum period of three weeks.

As stated above, in an update to the guidance on 3 April 2020, the Home Office has stated that employers can temporarily cut the pay of sponsored employees to 80% of salary or £2,500 a month (whichever is lower). However, there are ambiguities in the Home Office guidance around how the furlough scheme relates to the Tier 2 requirements and we await further clarification on this issue.

In any event, if you decide to furlough any Tier 2 sponsored migrants then it will still be necessary for you to remain compliant with your sponsor duties in relation to your sponsored workers throughout any furlough period. You will still need to report that the worker has been furloughed and report the reduction in salary on the Sponsor Management System as a change in migrant circumstances. Reports should be made within the time-frame set out in the Sponsor Guidance where possible. We would recommend that you keep detailed records of what has occurred in case of future audits.

The fact that the Government is paying for the CJRS has raised a question as to whether the payments under the scheme are “public funds”. Tier 2 sponsored workers and their dependents are prohibited from having recourse to public funds. However, the CJRS makes payments directly from HMRC to the employer. Therefore, the employee will still be paid by the employer and the Home Office has confirmed that this will not count as public funds.

What happens if I have to make my Tier 2 sponsored workers redundant?

If a Tier 2 worker’s employment is terminated, you must report the end of the employment on the Sponsor Management System within 10 working days of their last day of employment. This will lead to the Home Office curtailing their visa and writing to the employee giving them 60 calendar days to leave the UK, unless they can find a new sponsored role or they are able to make an application to stay in the UK under a different category. This will also apply to any dependents who are in the UK with the employee.

I am currently applying for a sponsor licence. Do I still need to send in all original documents?

The Home Office has confirmed that original documents are not required for sponsor submission sheets and sponsor licence applications at this time. The documents can be sent as scanned pdf files via email. Digital signatures are also acceptable at present for submission sheets.

I am in the UK on a Tier 1 (Entrepreneur) visa. Do I still have to employ at least two people for 12 consecutive months each? I can’t afford to do this at the moment because of the Coronavirus pandemic.

The latest guidance from the Home Office says that if a person on a Tier 1 visa has had their business disrupted because of the Coronavirus pandemic then they no longer need to meet the requirement to employ at least two people for 12 consecutive months each. The guidance sets out that you can meet the requirement by employing multiple employees across the 12 months (although time spent by those employees on furlough leave will not count).

If you have not been able to employ staff for 12 months in total by the time your visa expires, you will be allowed to temporarily extend your stay to give you time to meet the requirement. However, this exception should not be used as a substitute for meeting the requirements within the required time scales if you are still able to do so.

What if my employee has questions regarding their personal immigration status during this time?

Please see the following blog for FAQs that your employees may have during this time:

Where else can I get advice?

For further advice, you can call the Coronavirus Immigration Help Centre on 0800 678 1767 (Monday to Friday, 9am to 5pm) . You can also email them. If you have emailed the help centre already, they ask that you do not contact them by telephone as well.

If you need specific legal advice in relation to immigration matters then please contact Jane Biddlecombe, head of the immigration team at Paris Smith. In particular, we would recommend that sponsors seek advice if they are unsure of whether their actions might impact on the business’s sponsor licence duties. A failure to comply has serious consequences as it can jeopardise the licence and the immigration status of sponsored workers.

Jane Biddlecombe
Associate

T: 023 8048 2374
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