A guide to the immigration implications of COVID-19 for UK employers
07 July 2020
This article sets out the main immigration law issues and Home Office guidance that you need to be aware of so you can consider the implications of the COVID-19 pandemic for your business. The Home Office is making policy announcements and issuing revised guidance regularly and we will keep you updated as this is published.
(Updated as of 7 July 2020)
This document summarises the latest updates and provides further details on the issues listed below, from logistical considerations to Tier 2 and prevention of illegal working requirements.
Key points from latest guidance
The current document has been updated to reflect the following recent developments:
- The ending of self-quarantine measures for travellers arriving in England from certain countries on or after 10 July 2020
- The dropping of ‘essential travel’ restrictions from 4 July 2020 for people travelling from the UK to certain listed countries
- A new, temporary process where previously submitted biometric information (fingerprints) will be re-used for some in-country applicants, which avoids them having to attend a UKVCAS to enrol their biometrics
- The phased release of UKVCAS appointment availability
- A new discretionary switching concession for those whose leave expires after 31 July 2020, published on 26 June 2020
- Confirmation that the concession allowing sponsors to submit scanned documents in support of sponsor licence applications will continue after 30 June 2020
- A new concession for applicants under the Global Talent category who are in the UK to undertake research relating to COVID-19
Selected issues arising from the COVID-19 pandemic
- Visa processing issues
- Passport applications for British citizens abroad
- Self-quarantine measures for arrivals to the UK
- 'Essential travel' policy for travel outside the UK
- Visa holders with imminent expiry dates
- Special arrangements for health and social care workers
- Moving immigration category
- The cooling-off period
- Family and private life applicants
- Indefinite leave to remain
- Tier 2 sponsor licence holders
- Global Talent applicants
- Implications for EEA/Swiss nationals
- Right to work checks
1. Visa Processing Issues
The issues relating to UK visa processing are complex and rapidly changing, particularly as some VACs and in-country processing centres are still currently closed. Please contact us for advice on whether to submit or defer making an application on a case-by-case basis, particularly for applicants in the UK or who have departed the UK to make a further application from abroad while seeking to preserve the continuity of their leave for ILR purposes.
The Home Office is aware that some applicants may wish to withdraw an outstanding application due to circumstances connected to the pandemic. Its refund policies for withdrawing applications and requesting refunds have been updated accordingly.
Applying from abroad
The Home Office works with two commercial providers, VFS Global, and TLScontact, who operate the VACs abroad. Applicants need to attend a VAC to provide biometrics and upload supporting documents for UK visa applications. VACs have been reopening on a phased basis since 1 June 2020 and will remain open provided this is allowed and operationally feasible locally.
The latest advice from VFS Global can be checked here.
Status information on TLScontact VACs can be checked on the address page of the relevant preferred appointment location.
Applicants with appointments already booked at VACs that are closed should have been contacted by the commercial partner directly.
Due to border restrictions in some countries, commercial partners are also experiencing problems with being able to print and send UK visa vignettes and to return passports to applicants. Where possible, passports are being returned where VACs have re-opened. Any concerns about this should be sent to the commercial partner, noting that they will be required to comply with any local movement-related restrictions when returning documents.
If an applicant has already been granted their visa but they are unable to travel during the 30-day window of their temporary entry clearance vignette, they may need to obtain a new vignette before they travel.
The Home Office published guidance on 28 April 2020 confirming that a person whose temporary 30-day vignette has expired or is about to expire can request a free replacement visa until the end of 2020.
They must do this by emailing 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 the relevant VAC has re-opened, 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 new vignette will be valid for 90 days.
The requirement for a temporary 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.
Any applicant intending to leave the UK in order to submit a new visa application from abroad should consider the Home Office’s latest published guidance, which confirms that:
- Anyone currently in the UK with leave expiring between 24 January 2020 and 31 July 2020 can have their leave extended to 31 July 2020 if they are unable to depart due to COVID-19 travel restrictions or self-isolation. See the ‘Visa holders with imminent expiry dates’ section of this guide for more information; and
- Applicants with a visa expiry date between 24 January 2020 and 31 July 2020 are exceptionally authorised to submit their long-term visa applications within the UK where they would normally be required to submit these from abroad. Applications made under this arrangement must be submitted by 31 July 2020. See the ‘Moving immigration category’ section of this guide for more information.
Applicants should also ensure they remain up-to-date on any local restrictions which may affect the submission of their application and contact the VAC to reschedule a booked appointment as appropriate. For example, where VACs are open, applicants must take into account and clear any applicable self-isolation period before they attend the appointment. Applicants must also comply with any local requirements relating to travel restrictions. For example, many Australian citizens and permanent residents are not allowed to travel overseas unless they apply for and are granted an exemption. There is also an email process for South Africans to request permission to travel overseas.
In exceptional circumstances, it is possible to request a visa waiver in order to enter the UK as a visitor. Requests can be submitted by email to CIH@homeoffice.gov.uk setting out the urgent, compelling or compassionate reasons. Each request will be considered on case-by-case basis, but this option may prove particularly helpful for those with a pressing business need to come to the UK, or for family members of British nationals and settled persons.
Applying from within the UK
Sopra Steria, the Home Office’s commercial partner that manages in-country biometric appointments, suspended all UKVCAS services from close of business on 27 March 2020. Many service points have now re-opened on a phased basis since 1 June 2020. Information on which centres are open can be found here.
UKVI’s Service and Support Centres (SSCs) are operating on a reduced-capacity basis from 15 June 2020. The Home Office will contact applicants by email or post to make an appointment at one of these centres.
The Home Office is currently advising applicants not to select the priority or super priority processing options as these are not currently available.
Applicants with previously booked UKVCAS appointments should automatically have received a cancellation email, instructing them to log in to their UKVCAS account 24 hours later to view the rescheduled appointment date and time. Rescheduled appointments are guaranteed to take place at the same centre on a future date. Sopra Steria confirms this will have no impact on submitted applications as they will notify the Home Office directly of the delayed appointment.
To better cope with the backlog of biometric enrolments, on 2 July 2020 the Home Office announced that, as a temporary measure, the previously submitted fingerprints of some applicants can be reused. These applicants will be emailed by the Home Office and provided with instructions on how to submit a facial image and the supporting documents for their application. They will not need to attend a UKVCAS service point or SSC for their application to be processed.
Reuse of fingerprints is only possible for people applying in the work, study, family and private life, citizenship and Windrush routes. The process cannot be used for individuals who last enrolled their biometrics before July 2015 and children under 18 who have not enrolled their biometrics within the last two years. Also, if any applicant within a family group is ineligible to have their fingerprints reused, then the whole family group must enrol their biometrics together in person.
A different process applies for individuals or family groups whose fingerprints cannot be reused. Those who registered an account with UKVCAS after 27 March 2020 but before 1 May 2020 should have received an email before 4 July 2020 asking them to book an appointment. Further tranches of emails will be sent to applicants who registered their account later than these dates..
The Post Office has not made any announcement about suspending the processing of biometric enrolments, however applicants should observe social distancing measures while these remain in force. Once these have been lifted, it is advisable to contact the relevant branch before attending.
Lewis Silkin will continue to be an alternative collection location for our clients’ BRPs. We will therefore continue to receive them at our office and provide a notification when this has happened. We will store them securely until such time as non-essential travel is permitted by the Government and documents can be distributed. We anticipate delays in production and receipt of BRPs due to office closures and Government staff shortages so confirming the receipt of a BRP may take considerably longer than the usual 7-10 working day timeframe.
The Home Office confirmed on 28 April 2020 that individuals will not be penalised for being unable to collect their BRP while coronavirus measures are in place.
Disruption to services associated with making UK immigration and nationality applications
With limited exceptions mentioned elsewhere in this guide, applicants must still satisfy the requirements of the relevant immigration category or British nationality law in the usual way. This may mean obtaining assessment of an overseas degree, passing a valid UKVI-approved English language test, passing the Life in the UK test or attending a British citizenship ceremony.
Individuals applying in the UK should still ensure they submit their online application before the expiry of their existing leave in order to maintain lawful immigration status, even where supporting documentation is unavailable due to service closures. The Home Office will ask for outstanding documents/information to be submitted once services have resumed and before the application is decided.
Those who are required to register with the police must still make arrangements to do so, even if they cannot currently attend.
Although in-country immigration processing has been substantially reduced due to the pandemic, since the second half of May 2020 some in-country applicants have started to receive requests to submit supporting documentation and some applications have been finalised where biometrics have already been submitted and no other documentation is outstanding.
a) Assessment of overseas degrees
UK NARIC is continuing to conduct qualification assessments of overseas degrees and fast-tracked turnaround is still possible. However, statements are being issued electronically in PDF format and applicants will not receive a hard copy statement from UK NARIC until further notice. The PDF statements issued will be temporary documents designed specifically for the current period of COVID-19 restrictions. Once the restrictions are relaxed, UK NARIC will issue the official printed paper version of the statements by post. The Home Office will be aware of this change in process from UK NARIC and will have means to verify the authenticity of the temporary statements via www.naric.org.uk/verification. The documents required for an assessment to be conducted remain the same. This includes a valid medium of instruction letter from the relevant educational institution where it is not clear from the degree certificate or transcript that the course was taught in English.
b) UKVI-approved English language tests
The British Council, who are approved providers of the IELTS for UKVI and Life Skills tests required for a number of visa categories in the UK and overseas, have temporarily paused tests in many countries in response to Government and health authority guidance. To check if a particular country or test centre is affected, applicants can refer to the COVID-19 guidance on the IELTS website.
Trinity College London, who are approved providers of the GESE and ISE exams in the UK only, have re-started some tests from 8 June 2020. Updates can be viewed on the Trinity College London website.
LanguageCert, who have recently been approved to provide secure English-language tests on behalf of UKVI have started to re-open some of their test centres since 1 June 2020. Details of the current open centres are available on the LanguageCert website.
Pearson, who, since 21 May 2020, offer UKVI-approved PTE Academic and PTE Home tests outside the UK only, have some centres open, with others due to open over the summer on a phased basis. See the Pearson website for further information.
c) Life in the UK tests
Life in the UK test centres, relevant to applicants for indefinite leave to remain and naturalisation, closed from 21 March until 31 May 2020. Some centres have been re-opening since 1 June 2020 and information on which centres are currently operational can be found on the LIUK website.
d) Police registration certificates
Police registration at the Overseas Visitors Records Office (OVRO) is currently suspended, however preparations have been made for it to reopen five days a week instead of four, and under enhanced health and safety arrangements. Customers will be encouraged to wear a face mask when attending.
Anyone with a pre-booked appointment will be contacted directly to reschedule the appointment. Those who had booked to attend between 23 March 2020 and 8 July 2020 will be offered priority appointments ahead of other customers.
Action will not be taken against individuals who are unable to attend the OVRO or to book an appointment in order to either register their stay in the UK or update existing certificates. Updates can be monitored on the OVRO website. Those who live outside the London metropolitan area covered by OVRO should contact their local police force for guidance.
e) British citizenship ceremonies
All Local Authority offices are closed until further notice. Applicants with an existing citizenship ceremony booking will be contacted by an officer to reschedule the ceremony to a later date. Those wishing to book a new appointment are advised to monitor the relevant Local Authority website for updates. In these circumstances, the normal three-month deadline to attend a citizenship ceremony following the approval of a British citizenship application will be extended so that a ceremony can be attended once the Local Authority offices reopen.
Applications for British passports can be made online, however applicants who are abroad and need to attend a VAC will only be able to complete their application if the VAC is open.
British citizens who urgently need to travel to the UK without a passport need to contact the British Embassy, High Commission or Consulate in the country where they are located.
3. Self-quarantine measures for arrivals to the UK
Self-quarantine measures for most new arrivals to the UK have been put in place from 8 June 2020 and are subject to review every three weeks.
Within 48 hours of arriving in the UK, travellers must complete a Public Health Passenger Locator form with their contact details and travel information, so they can be followed up if they or someone they may have been in contact with develops COVID-19. If they have not arranged to stay at a hotel, with friends/family or at their own accommodation, then they will be provided with government-arranged accommodation at their own cost. Information will also be provided on the NHS contact tracing app, with travellers being encouraged to download this.
Following entry, travellers must use personal transport where possible to get to their accommodation and remain there in self-isolation for 14 days. They must not go out during this period, unless it is for urgent assistance, to attend a funeral or due to another compassionate circumstance, to buy food or medicine where they cannot have this brought to them, or there is an emergency. Visitors are not allowed unless this is required for essential support.
Those who refuse to provide their contact details can be fined £100 and may be refused entry if they are not British or a UK resident. A fine of up to £1,000 may also be imposed in England and Wales if it is found that the self-quarantine has been breached, eg at a spot check. Enforcement measures in Scotland and Northern Ireland will be published on GOV.UK.
Common Travel Area and ‘travel corridor’ exemptions
Some individuals are exempt from the measures, including those who enter the UK from the Common Travel Area (the Republic of Ireland, Isle of Man and the Channel Islands), provided they have been in the area for at least 14 days already.
From 10 July 2020, travellers arriving in England from listed 'travel corridor' countries do not have to self-quarantine provided they have not been to, or stopped in, any non-listed country within the last 14 days. This arrangement has not been agreed for people arriving in Northern Ireland, Scotland or Wales, however the situation should be monitored for changes. In the meantime, specific advice should be sought for travellers who are intending to spend time in the UK other than England within 14 days of their arrival.
It should be noted that transiting through a non-listed country will mean that self-quarantine will apply on arrival to England unless the person is exempt due to the purpose of their travel to the UK. This means that some individuals who need to travel long-haul will still need to self-quarantine in England if it is impracticable to use a route that only includes listed countries. The measures are not reciprocal, so travellers should also check what self-quarantine or other restrictions apply in all countries they intend to enter or transit before travelling.
Separately, there is a list of individuals who are exempt from data collection and/or self-quarantine due to the purpose of their travel to the UK. This list mainly focuses on haulage and transportation workers, medical and scientific professionals needed to assist with the COVID-19 pandemic, professionals required to maintain essential infrastructure and diplomatic personnel. Cross-border workers and registered health and care professionals providing essential healthcare are listed as exempt in England, Wales and Northern Ireland, but not in Scotland. There are also complexities to be aware of for cross-border workers, which are covered in this article.
Employers should note that the quarantine does not prevent a new employee from having their right to work checked remotely, or from being onboarded and starting work at the address where they are self-isolating.
4. ‘Essential travel’ policy for travel outside the UK
On 17 March 2020, the Foreign and Commonwealth Office issued a global advisory against all but essential travel. From 4 July 2020, this has been modified to exempt listed countries and territories that the Government considers do not pose an acceptably high risk for British travellers. Individuals intending to travel to these destinations should still ensure they check local requirements and restrictions, in particular about whether a period of self-quarantine is required on arrival.
5. Visa holders with imminent expiry dates
On 22 May the Home Office updated its COVID-19 advice for UK visa applicants and temporary UK residents to confirm that holders of UK visas with an expiry date between 24 January 2020 and 31 July 2020 can apply to have their stay extended to 31 July 2020 if they were not planning to stay in the UK but cannot leave the UK due to COVID-19 travel restrictions or self-isolation. This policy covers all nationalities and visa categories.
Initially there was an arrangement for Chinese nationals with visa expiries between 24 January 2020 and 30 March 2020, whose stay was extended automatically to 31 March. An application process was then implemented for those with expiries up to 31 May. This was made available as an email request, and then replaced with an online form.
Anyone whose leave expiry has already been extended to 31 May will receive an automatic extension to 31 July. Those who have not applied for an extension before and need their visa to be extended to 31 July must request this using the online form available here. It is advisable for anyone who previously sent an email to the main helpline email address to complete and submit the online form if they have not received a reply to their email.
Applicants are required to provide their personal details (name, date of birth, nationality and visa reference number), as well as a note of why they cannot return to their home country. It is important to be aware that an extension may be declined if it does not relate to travel restrictions or self-isolation and that this process. Although the process should not ordinarily be used for people who were intending to extend their leave in-country in any event, it may be necessary to do so in some circumstances. In these cases, it is advisable to seek specific approval from the Home Office to pursue this course of action.
The Home Office anticipates being able to respond to an extension request within five working days of receiving it. Those who need a status letter confirming the extension or a new BRP with the revised expiry date should contact the Coronavirus Immigration Team (CIT) at CIH@homeoffice.gov.uk to request this. In other cases, no further documentation will be issued other than the email from the CIT in response to the extension request. Please do contact us if help is needed with applying.
6. Special arrangements for health and social care workers
On 31 March 2020 the Government announced that NHS doctors, nurses and paramedics whose visas are due to expire before 1 October 2020 will have their leave to remain extended for one year.
This provision was substantially expanded via an announcement on 29 April 2020. Following the expansion, an automatic one-year visa extension is available to frontline health and social care workers working both for the NHS and in the independent sector whose visas expire between 31 March 2020 and 30 September 2020. It should be noted that care workers in nursing homes or private residences are not included.
On 1 May 2020 the Government published an exhaustive list of eligible occupations – biochemist; biological scientist; dental practitioners; health professional; medical practitioner; medical radiographer; midwife; nurse; occupational therapist; ophthalmologist; paramedic; pharmacist; physiotherapist; podiatrist; psychologist; social worker; speech and language therapist; therapy professional.
The arrangements also cover the dependent family members of eligible workers.
Extensions will be issued automatically, and individuals will be exempt from having to pay the Government application fee and Immigration Health Surcharge. NHS workers with an outstanding application will be offered a refund.
Eligible applicants will be identified and contacted directly by the Home Office. Those who are not sure whether they are within scope of the concession should contact us or the HR representatives responsible for immigration matters at their employer, as employers identified by the Department for Health and Social Care will liaise with the Home Office to compile a list of eligible individuals.
In a public announcement on 21 May 2020, and following significant pressure from Members of Parliament, the Government announced an intention to exempt all NHS staff and care workers from having to pay the Immigration Health Surcharge. Specific details are expected to be released swiftly.
The 29 April statement also confirmed that the family members of frontline workers who die from COVID-19 will be offered free and immediate indefinite leave to remain (ILR). A publicly-available bereavement scheme policy was subsequently published on 20 May 2020, stating that ILR will be granted to any non-EEA family member of any NHS worker, including support staff, or a healthcare or social care worker in the independent health and social care sector. Eligible individuals should be contacted by the Home Office, but can also contact UKVINHSTeam@homeffice.gov.uk if they have not been contacted and believe they are within scope. Although excluded from the published concession, the EEA/Swiss national family members of EEA/Swiss frontline workers who have passed away due to COVID-19 may be eligible to apply for ILR under the EU Settlement Scheme. It will be necessary to contact UKVI’s NHS Team to ascertain what, if any, arrangements will be available for the EEA/Swiss family members of non-EEA frontline workers, as they appear to have been overlooked.
Also, since 31 March 2020, there is no limit on the number of hours per week a person can work or volunteer if they work for the NHS as a doctor, nurse or paramedic and are in the UK as a Tier 4 student, a Tier 2 worker working for the NHS as a second job, a visiting academic or a short-term visa holder who is allowed to volunteer. These provisions were expanded on 1 May 2020 to cover those working in all eligible COVID-19 frontline occupations, to state that frontline work can be undertaken at any NHS hospital without the need to notify the Home Office and that supplementary frontline work is allowed in any role, at any skill level and with no limit on the number of hours allowed.
Pre-registration nurses have also had the deadline to sit the Occupational Structured Clinical Examination pushed back to 31 December 2020, and they have been given until 31 May 2021 to pass this if they are not successful on their first attempt.
7. Moving immigration category
The Home Office initially announced in their COVID-19 guidance a concession to allow Chinese nationals currently on a Tier 2 (Intra-company Transfer) visa to switch in-country to a Tier 2 (General) visa. Normally such a switch would require a fresh visa application to be made from abroad.
This concession was significantly widened in the guidance from 24 March 2020 to cover switching into all long-term visa categories until 31 May 2020, and then extended on 22 May 2020.
The current position is that provided the application is submitted by 31 July 2020, anyone with a visa expiring between 24 January 2020 and 31 July 2020 who would normally have to depart the UK to submit a long-term visa application from abroad is permitted to submit their application in the UK instead. The usual UK immigration fees for in-country applications will be charged.
Although the guidance on GOV.UK does not elaborate what a ‘long-term’ visa is, standard correspondence from the Coronavirus Immigration Helpline confirms that this excludes the Tier 5 Youth Mobility Scheme, Tier 5 seasonal worker and overseas domestic worker categories, as well as Tier 4 applications from individuals in receipt of a Chevening, Commonwealth or Marshall scholarship.
On 26 June 2020 the Home Office confirmed on GOV.UK that individuals whose leave expires after 31 July 2020 may make an application from within the UK if:
- They urgently need to make the new application, eg to start a new job or course of study, including where this involves switching immigration route, and
- They cannot leave the UK to make an application from overseas
We interpret this to include the situation where a person can leave the UK, but they cannot make an application from overseas because the VAC they would normally need to apply at is closed.
A careful assessment should be made of whether the applicant’s circumstances brings them within the scope of the concession at the time the application is submitted. If making an application under the concession is considered appropriate, we would also suggest that detailed representations are submitted with the application, addressing why it is urgent and setting out the factors that prevent it from being made from overseas.
Applicants who are intending to submit their application within the UK when they would ordinarily be required to do so from abroad should also be aware that they still need to satisfy all the other requirements of the relevant visa category in the usual way and that they may encounter delays in receiving a decision due to factors such as UKVCAS and English-language testing centre closures or UKVI staff shortages. There currently is a lack of clarity about which online form applicants should use in some cases, and other issues such as whether applicants will need to complete tuberculosis screening in cases where this would have been required as part of the equivalent entry clearance application. The Home Office is in the process of considering these issues. Applicants with an imminent visa expiry date or who are not normally allowed to make their application from within the UK should seek advice on the best approach for their circumstances. This will vary on a case-by-case basis.
As announced in an update to the guidance on 14 April 2020, Tier 2 or 5 applicants whose in-country application is pending may start work in their new role before the application has been decided, if the following requirements are met:
- They have been assigned a CoS by the sponsor of the new role;
- Their application has been submitted online before their current visa expired and this can be evidenced to their sponsor; and
- The job they start is the same as the one listed on the CoS connected to their pending application.
The sponsor must comply with reporting responsibilities from the point at which they assign the CoS, not from the date the application is granted. Relevant changes need to be reported on the CoS as usual.
Before the application is decided, sponsors will not normally be able to make reports using the sponsor management system (SMS), unless they already sponsor the person in another role. During this time, any information that must normally be reported on the SMS in accordance with the sponsor guidance, such as a change in migrant circumstances, must be recorded and retained on the sponsor’s internal systems.
If the person’s application is rejected as invalid or is eventually refused by the Home Office, the sponsor must stop sponsoring them and they must stop working for the sponsor.
Employers should carefully consider the situation for Tier 2 visa holders who are currently stranded abroad, or requests from Tier 2 migrants who might wish to return to their home country or to travel to any other country to work remotely. If a Tier 2 visa holder is unable to return to the UK before their visa is due to expire, they may be caught by the cooling-off period which will prevent them returning to the UK on a Tier 2 visa for 12 months. The cooling-off period does not apply if they are applying for a Tier 2 General visa and their salary is above £159,600, if they are applying for a Tier 2 Intra Company Transfer visa and their salary is above £120,000 or if their original certificate of sponsorship was granted for three months or less.
We are hopeful the Home Office will offer some discretion, but this has not been formally confirmed. It is important that this is flagged with employees who could be affected. Please contact us for further guidance on this.
9. Indefinite Leave to Remain
Tier 2 General migrants who want to ultimately apply for ILR in the UK are subject to a rule on absences in that they cannot exceed 180 days absence from the UK in any 12-month period. There are some exceptions to this requirement, particularly when absences are due to an exceptional circumstance. It is likely that Tier 2 visa holders who accrue absences abroad as they are unable to travel due to COVID-19 will be able to argue that this amounts to an exceptional circumstance but the Home Office has not yet published any formal policy on the issue. We would recommend in this instance to keep records of flight tickets and other documentation to evidence the absence, which could be submitted at a later stage to support an ILR application.
10. Family and private life applicants
A range of temporary concessions and statements of existing policy were published on 9 June 2020 for family and private life applicants. These concessions do not apply to applicants in other categories. Some of the concessions require discretion to be exercised, so should be carefully prepared with supporting representations and evidence. Please contact us if assistance is needed with this.
Applicants stuck abroad
Where an applicant is outside the UK and has not made a further application before their leave as a family member or on private life grounds expired, a concession confirms that a ‘short break’ in continuous residence will not count against them in the future. They are however expected to make their next application as soon as they can. The process and criteria for making the application are not outlined on GOV.UK and we are seeking clarification from the Home Office. In particular, it is not clear whether an applicant abroad will be able to rely on their earnings from employment or self-employment if they are required to apply for entry clearance.
Fiancés, fiancées and proposed civil partners
Individuals in these categories who have been unable to attend their ceremony due to COVID-19 can either request a free extension of their leave to 31 July 2020 if their leave is due to expire before this date, or can make a further paid-for application to extend their leave for six months in order to attend the ceremony. Those whose leave expires after 31 July 2020 may wish to wait and see whether the free extension is made available beyond this date.
Minimum income and adequate maintenance requirements
Two concessions have been implemented concerning the minimum income and adequate maintenance requirements.
Those who have lost income due to the pandemic will be allowed to count their employment income immediately before the loss, provided that the applicant is able to meet the requirement for at least six months up to March 2020. It is not clear whether this means before or including March 2020.
Those who have been furloughed will have their income assessed as though they were earning their full salary throughout the furlough period. This is not specified on GOV.UK but applicants will obviously need to submit evidence of the furlough arrangement if seeking to rely on this concession.
The Immigration Rules allow an application to be approved in some circumstances despite required specified documents not being provided, or for the case worker to ask for them after the application has been submitted but before it has been decided. This does not amount to a new concession however it is helpful to have confirmation that evidential flexibility will be considered if a person cannot obtain documents required for their application due to the pandemic.
There is also already a provision in the Immigration Rules that allows an applicant in the partner or parent categories to be exempted from the English-language requirement if there are exceptional circumstances which prevent them from being able to meet it.
Without stating that an exemption will be applied, the guidance on GOV.UK now flags that one can be requested if the relevant test centre was closed or the applicant could not travel to it at the time they made their application. Applicants should note that the Home Office’s guidance normally requires them to demonstrate it was not reasonable or practicable to travel to another country to take the test, so this aspect should be considered when requesting an exemption on the grounds of exceptional circumstances.
11. Tier 2 sponsor licence holders
Businesses holding a Tier 2 sponsor licence have certain reporting and record-keeping duties in relation to sponsored employees. The spread of COVID-19 and the consequential restrictions on travel could have implications for complying with sponsor licence duties. For instance, delays to start dates and changes in work location normally need to be reported within ten working days on the sponsor management system. The economic impact of COVID-19 may also mean that sponsors might have to cut salaries or place employees on unpaid leave, which would be considered as changes in circumstances that need reporting if they relate to Tier 2 workers.
We would recommend that sponsors seek advice from us if they are unsure of whether a course of action they are considering might impact on the business’s sponsor licence duties. Failure to do so is serious as it can jeopardise the licence and the immigration status of sponsored workers.
Some particular issues to bear in mind:
- Sponsors must continue to report changes to their own circumstances as normal, including any changes to their key personnel, eg where a person leaves the business, where the organisational structure of the business changes or where it ceases trading or becomes insolvent
- Under the present Home Office guidance, a Tier 2 migrant can only delay their start date by up to 28 days once their visa has been granted. Due to current travel restrictions, a sponsor may have Tier 2 workers who will be unable to enter the UK to start work so their start date will have to be delayed. Any delay to their start date should be reported on the sponsor management system. If their start date does have to be delayed beyond 28 days, please contact us for further guidance.
- Many Tier 2 workers will now be working from home as offices encourage remote working. A Tier 2 sponsor normally has to report a change in work location on the sponsor management system within ten working days. The Home Office allows Tier 2 workers to work from home but the Home Office has confirmed that working from home temporarily in this circumstance is not a change of work address requiring an SMS report. Sponsors should continue to report any other changes, for instance if a sponsored employee is working out of another office abroad, or continues to work from home either in the UK or abroad in circumstances the sponsor has assessed are no longer related to COVID-19 restrictions. Sponsors should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties.
- Tier 2 sponsors must have a copy of the migrant’s passport and visa on file. See below for a link to our separate guidance on how to conduct right to work checks when employees are not able to attend work in person.
- A Restricted CoS must be assigned within three months. Once assigned, it must be used within three months. If either of these deadlines is missed, the CoS will become invalid and a new CoS will be required. However, where the CoS expired because the applicant was unable to travel due to the COVID-19 pandemic, it may still be accepted by the Home Office. Employers were previously advised in the COVID-19 guidance of 3 April 2020 to submit details to the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk where decisions will be made on a case-by-case basis. This instruction no longer appears in the current guidance however would continue to be a sensible approach.
- Normally a Tier 2 worker cannot take unpaid leave of four weeks or more per calendar year, according to their normal working pattern, however the Home Office has published a concession allowing unpaid absences from work due to the COVID-19 outbreak.
- If a sponsor is having to consider cutting salaries and/or reducing working hours, this will have reporting and potentially other implications for Tier 2 workers. The Home Office updated its COVID-19 guidance for Tier 2, 4 and 5 sponsors on 3 April 2020. This latest update confirms that employers may reduce the salary of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower. Any changes must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. This concession applies even where the SOC code minimum salary is higher than £30,000 (or other applicable general minimum threshold). The reduction is permitted as a temporary measure and, once the relevant policy has ended, the salary must return to the previous rate in accordance with the CoS. SMS reports must be submitted to notify the Home Office of all salary changes.
- Sponsors may have to consider terminating the employment of sponsored workers in light of the economic downturn, which will trigger reporting requirements for the sponsor and will have immigration implications for individuals.
For further information on the immigration implications for Tier 2 workers of changes to salary, the Government’s Furlough Scheme and redundancy, see our separate briefing note.
Until at least 30 June 2020, the Home Office is allowing prospective or current sponsors to submit scanned documents in support of sponsor licence applications or sponsor-related requests. As at 3 July 2020, the Home Office is still allowing this. Confirmation has been received from the Home Office that the GOV.UK website will be updated with a new expiry date for the concession. Originals must however be provided upon request. All onsite visits to sponsors are currently suspended, which may mean that some sponsor licence applicants will not receive a decision until the visit has been carried out and the compliance visit report has been assessed.
12. Global Talent applicants
On 3 April 2020, the Government confirmed that Global Talent applicants whose endorsement has expired because they have not been able to travel to the UK may still be eligible for a visa, and that their circumstances will be considered on a case-by-case basis. It is advisable for representations relating to disrupted travel plans to be submitted with such applications.
On 1 July 2020 a temporary concession was implemented for Global Talent applicants who are undertaking COVID-19 related research. It only applies to individuals who are endorsed by UK Research and Innovation under the endorsed funder route.
- the written confirmation from the endorsed funder must confirm the applicant’s award has at least one year remaining as at the date of application for endorsement (instead of the normal two years)
- the written confirmation must state that the applicant is working on a COVID-19 related grant and provide the relevant unique database reference number from the UK Collaborative Research COVID-19 Research Project Tracker
- the applicant’s employment or hosting agreement must have at least one year remaining on it as at the date of application for endorsement (instead of the normal two years)
- in-country switching will be allowed from any immigration category
Individuals covered by the concession will be granted entry clearance or leave to remain as normal, and will be able to request leave for up to five years and will become eligible for indefinite leave to remain after three years.
13. Implications for EEA/Swiss nationals
As the UK has now left the European Union, nationals of the European Economic Area and Switzerland and their family members currently living in the UK have until the end of June 2021 to register under the EU Settlement Scheme (EUSS) for either pre-settled and settled status. They should continue to apply via the specially designed app available on both iPhone and Android devices. Applications for the EUSS can also be made from abroad.
For an individual to qualify for settled status, normally they must not be absent for over six months in any 12-month period. There is some discretion for absences up to 12 months for an ‘important reason’ such as sick leave, or compulsory military service of any length. There is therefore good reason to believe that an otherwise eligible individual who is abroad and who cannot return to the UK will have some discretion applied to them if their time abroad takes them beyond the six-month limit. We would suggest though that they take legal advice on this.
The UK is currently in a transition period which will last until the end of December 2020 when free movement arrangements will come to an end. There is a possibility that the transition period may be extended due to the disruption caused by COVID-19. We will provide further advice on this if there is any change to the relevant deadlines.
Currently, the Home Office is continuing to process EUSS applications, albeit with anticipated delays. Some new applications can still be submitted using the mobile app or online application form. After a period of suspension, non-EEA applicants can now apply online again (as of June 2020) if they do not hold a biometric residence card. Applicants who need to complete a paper application form must submit a request for a form to the Home Office and can continue to do so online.
Any applicants required to present their original ID documents at an ID document scanner location should note that this service has been suspended. The same applies to postal submission of passports directly to the Home Office. Any passports already received by the Home Office will be returned as soon as practicable. New passports should not be submitted until further notice.
14. Right to work checks
A right to work check (RTW) will usually involve an employee of the employer meeting with a new starter or existing employee in-person to check their documents. This may not be possible while social distancing measures apply. Under the Government’s existing guidance for RTW, supplemented by temporary adjusted guidance published on 30 March 2020, employers must still conduct RTWs even if they are not able to meet with individuals face-to-face. They have provided leniency around how these are done so that scanned copies can be used instead of originals but all other requirements must be met and a fresh RTW conducted once normal working arrangements resume. Some of the Home Office’s published concessions also have implications for RTWs. For information on the options for RTWs during and after the COVID-19 pandemic, see our separate article.
For further information
The situation is rapidly changing. This advice will be updated but it is important to consult with us before taking action and to ensure ongoing compliance and best practice while immigration arrangements remain affected by the pandemic.
For information and guidance on issues including business continuity, contractual considerations and employer/employee relations visit our Lewis Silkin COVID-19 hub.
The main UK Government webpages for updates is GOV.UK - Coronavirus (COVID-19): immigration and borders.
The Home Office also has a special Coronavirus Immigration Help Centre:
Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)
Calls are free of charge.
The Home Office requests that if an email has been sent to the Help Centre, it should not be contacted on the same issue by phone.
(Updated as of 7 July 2020)
Covid 19 - Coronavirus
Our advice on responding to the coronavirus outbreak.