COVID-19 immigration implications for the UK marketing sector: much ado about… a lot

Ongoing sponsor duties

All companies with a sponsor licence remain bound by their sponsorship duties. Many organisations may need to implement pay cuts for their employees, and sponsors must be careful to consider the immigration implications of doing so for migrant workers. A salary decrease must be reported on the SMS within 10 days of the change, and if the drop takes the migrant worker’s salary to below a minimum salary threshold, the Home Office’s usual stance is to cut the worker’s leave short. Compliance action may also be taken against the sponsor. Updated Home Office guidance on this topic has yet to be released.

The UK Government has announced the Coronavirus Job Retention Scheme to enable employers to pay staff who would have otherwise been made redundant due to the pandemic. The Government will reimburse up to 80% of the wage costs of employees who would have been laid off, up to a maximum of £2,500 per month. Furloughed employees remain employed but are not able to carry out any work. However, this raises the question of whether sponsorship can continue while they are furloughed as they will not be working for their sponsor. The Home Office has yet to confirm whether a migrant worker can be furloughed without it affecting their immigration status in the UK. Flexibility is likely, but until a statement has been made, we would advise you to report any changes in migrant circumstances on the SMS as normal, and to keep detailed records of any shifts in working patterns in anticipation of future audits.

Employers may alternatively need to place employees on unpaid leave. The Immigration Rules dictate that under normal circumstances, sponsors would need to withdraw sponsorship of any migrant worker who takes more than four weeks of unpaid leave in a calendar year, according to their normal working pattern. However, the Home Office has published confirmation on GOV.UK confirming that where sponsors need to place migrant workers on unpaid leave due to the COVID-19 pandemic, they do not need to withdraw sponsorship and will not face compliance action. Migrant workers can also work from home without a report needing to be made on the SMS notifying a change in primary work location.

The Home Office has said that foreign workers currently in the UK whose leave expires between 24 January 2020 and 31 May 2020 will be able to extend their leave until 31 May 2020 if they cannot leave the UK due to travel restrictions or self-isolation as a result of COVID-19. Individuals in this position will need to inform the Home Office’s Coronavirus Immigration Team before being able to benefit from the extension. The Home Office has stated that extension requests should be processed within five working days of submission.

Responding to market changes: using freelancers and temporary workers

The COVID-19 crisis has triggered an increase in the demand for digital marketing campaigns, requiring many advertising firms to bring in freelancers to cope with the additional workload. When hiring freelancers, it is important to ensure that the government-mandated right to work checks are carried out. While the checks are, strictly speaking, only applicable to employees, it is best to perform compliant right to work checks on all people with whom companies engage to benefit from the full protection of the statutory excuse against illegal working penalties. Companies that employ illegal workers can face criminal liability for employing someone who they knew or had reasonable cause to believe did not have the right to work in the UK, or civil liability of up to £20,000 per illegal worker where the right to work check was not carried out correctly.

The Home Office indicated on 30 March that scanned copies of documents will temporarily suffice for right to work checks in light of the COVID-19 crisis and the resulting change in working patterns for many employees. Individuals will be able to prove their right to work via video link using scanned copies of their identification documents. The scanned documents should be kept on file for the duration of the freelancer’s time at the commissioning company. A fully compliant retrospective right to work check will need to be carried out within eight weeks of the Home Office announcing that the temporary procedure has been discontinued.

Cancelled campaigns and temporary workers

On the other hand, demand for campaigns has decreased in industries that have been hard-hit by the virus, such as sporting associations and live entertainment providers. Bans on large-scale gatherings have obvious implications for advertising initiatives in this sector, particularly as the UK seems set to remain in a state of abnormality until at least the autumn.

This will, in turn, have an adverse impact on individuals who have come to the UK on a short-term, temporary and campaign-targeted basis. Models and influencers, who often travel to the UK for specific, standalone shoots, are therefore in a precarious position. There are typically two visa routes for models and influencers: a Tier 5 (Creative and Sporting) visa or a Permitted Paid Engagements visa (PPE).

Tier 5 (Creative and Sporting) visas are often used by sportspeople and models to undertake work in the UK on a temporary basis. Visa-holders are sponsored by a licensed employer before they come to the UK but are subject to strict requirements: they must have at least one engagement every fourteen days to remain compliant with the terms of the visa. Models and influencers who come to the UK under this route will likely face difficulties meeting this condition in the current market. The Home Office has yet to comment on whether flexibility will be afforded to those in difficult positions due to the pandemic.

PPE visas allow companies to invite models and influencers to the UK to do specific paid work without having to be sponsored under the points-based system. Individuals on this visa can stay in the UK for up to one month at a time. Many individuals will now find themselves unable to travel for the intended purposes, be this due to international travel bans or cancelled campaigns. Refunds are generally unavailable for processed applications, and we are awaiting Home Office guidance regarding whether this will change.

If you require any further guidance on the immigration implications of COVID-19, please refer to our overview or get in touch with a member of our immigration team.