UK immigration and COVID-19 beyond the lockdown

Whilst we continue to provide updated insight throughout the COVID-19 pandemic on the immigration issues affecting businesses and the temporary guidance and concessions implemented by the Home Office during this period, this article focuses on considerations for employers and visa holders as the UK and other countries around the world begin a gradual transition out of lockdown.

The issues relating to processing remain complex and, as each country will be moving out of lockdown at a different pace depending on their own local restrictions, each application should be considered on a case-by-case basis. Please contact us for advice to discuss the details of specific cases.

1. Visa processing – applying to remain in the UK
2. Visa processing – applying from abroad
3. Sponsor compliance
4. Indefinite Leave to Remain (ILR)

1. Visa processing – applying to remain in the UK

Discretionary extension concession

For many countries, the status of the pandemic and risk to public health means that it is deemed too soon by individual governments to be able to safely resume normal service. This has continued to impact individuals in the UK on a temporary basis who have been unable to return home on account of travel restrictions and safety concerns. In light of this, the latest published guidance as updated by the Home Office on 22 May 2020 provides that discretionary extensions may now be granted until 31 July 2020 (an amendment to the previous 31 May 2020 date).

The concession is applicable to visitors and visa holders present in the UK, with a visa expiring on or before 31 July 2020, who are unable to leave the UK due to COVID-19 travel restrictions or self-isolation and were not intending to remain in the UK beyond their visa expiry. The Home Office has however confirmed to us that the extension process may be used before making an application for further leave to remain in some cases.

Anyone who already applied for and was granted a discretionary extension until 31 May 2020 will automatically have their leave extended until 31 July 2020 without the need to submit a new request. Those who were not previously eligible to apply, i.e. individuals with visas expiring in June/July 2020, may now complete an online request. As before, the request must include the reason for not being able to depart the UK and decisions should be received within approximately five working days. Despite the extension being valid until 31 July 2020, individuals are expected by the Home Office to depart the UK as soon as it is safe and possible to do so. The status of safety in the destination country and options to depart the UK should therefore continue to be monitored. There is no indication of a further extension to this concession at this stage.

Leave to remain applications

As outlined above, the discretionary extension concession is not intended for visa holders approaching visa expiry with an intention to continue residing in the UK, e.g. Tier 2 visa holders continuing in sponsored roles. In this circumstance, the appropriate action is to submit a visa extension application in the usual way before the current visa expires.

In the run up to lockdown measures being introduced in the UK, applicants with confirmed biometric appointments began to be notified of cancellations due to the closure of the UKVCAS service points across the country. Once the lockdown was in full force from 30 March 2020, applicants could no longer book an appointment. More recently, applications submitted online could only be finalised by opting for standard processing, with no fast-track services available and no option to book an appointment.

All of these applicants have been left in limbo, with both standard and fast-track applications pending but no sign of when a decision will be forthcoming. Those who have paid for fast-track processing should receive a refund if their application is processed under the standard option.

However, since 1 June 2020 UKVCAS has commenced a phased and controlled reopening of their service points. Appointments are available from 1 June 2020 onwards.

In the first instance, appointments will be offered to applicants who had their original appointments postponed due to the suspension of UKVCAS services. Affected applicants will be contacted directly with an invitation to schedule a new appointment, honouring the appointment fee already paid.

Updates on which centres have reopened can be found on the UKVCAS website. If the appointment options are unsuitable, applicants will be able to wait for their preferred service point to reopen without any adverse impact on their immigration application.

As an exception, healthcare workers requiring an appointment are asked to contact the Coronavirus Immigration Helpline directly to schedule an appointment.

All remaining applicants should complete the UKVCAS account registration after submitting their online visa application so that they can be notified directly at a later date to book their appointment.

Applicants should also ensure contact details entered on the application form are accurate as they may be contacted by a Home Office caseworker to:

• confirm the application has been received as a valid, in-time application before the current visa expiry date, that the conditions of the current visa will continue until such time as a decision can be made and that processing of the application is likely to take longer than eight weeks; and
• submit digital copies of supporting documents that have not already been self-uploaded so that these can be considered, leaving biometric enrolment as the final stage of the process as a way of minimising further delay.

In all cases, there will be no expedited application processing until the Home Office has cleared the current backlog and they are confident that they can meet the priority (five business days) and super priority (one business day) service standards.

Leave to remain – switching to a new category or new sponsor

Monitoring by sponsors will be particularly important in the case of Tier 2 and 5 visa applicants who have commenced employment with a sponsor company ahead of receiving a decision on their application, in line with the Home Office’s concession dated 14 April 2020. This concession remains in place and is especially helpful for Tier 2 General change of employment applications where an existing Tier 2 General migrant switches their sponsorship to a new employer.

Applicants are eligible under this concession only where they have been assigned a valid Certificate of Sponsorship (CoS), the online application is submitted before the current visa expiry, and the role they perform is in line with the details stated on the CoS.

As Home Office services gradually resume, decisions will be issued. In the event that an application is rejected as invalid or refused, employment may need to be terminated to comply with prevention of illegal working guidelines. If there are any changes to report, these should be recorded on file while it is not possible to submit reports on the live CoS. Sponsors are advised to contact us for advice on specific cases of this nature prior to taking action.

Switching concession

The Home Office COVID-19 guidance for applicants was also updated on 22 May 2020 in relation to individuals currently in the UK with a visa expiring on or before 31 July 2020 and who would ordinarily be required to submit their long-term UK visa application (e.g. Tier 2 General) from overseas. These individuals are exceptionally permitted to submit the application from within the UK using UK extension application forms and paying the relevant UK fee.

Whilst the Home Office has demonstrated flexibility in this situation, the process of applying within the UK has not been so straightforward. For example, it is still not clear whether the Home Office will apply entry clearance or further leave to remain Rules to those who apply under the concession. The Home Office has been asked to take a pragmatic view where there is increased scope for error.

Applicants should seek advice before submitting an application and ensure that any contact details provided as part of the application are correct and up-to-date so that any Home Office requests for further information can be received and responded to.

2. Visa processing – applying from abroad

The Visa Application Centres (VACs), operated by the Home Office’s two commercial providers VFS Global and TLS Contact, have re-opened on a phased basis from 1 June 2020 where local restrictions allow. This includes centres reopening in Australia, parts of Asia and Europe. However, where local restrictions apply, VACs will reopen on a later date to be confirmed.

The latest status updates can be found online when selecting the specific location information:

VFS Global

TLS Contact

Entry clearance applicants must ensure they can satisfy the requirements of the visa category unless a specific concession applies. Even if a VAC has resumed appointments, it may be necessary to pass an English language test, obtain a TB certificate or complete a UK NARIC assessment before submitting the application:

• English language testing – centres and locations will vary globally depending on the current public health restrictions. The relevant websites can be checked for regular updates – Pearson, IELTS and LanguageCert
• TB testing – the test centre in the relevant location should be contacted to confirm up-to-date status.
• UK NARIC – assessments continue to be completed digitally for the time being, with hard copy statements to follow once services resume.

Urgent travel to UK in compelling and compassionate circumstances

It may be possible to request a visa waiver to allow urgent entry to the UK without applying for a visa or collecting a visa that has already been granted. This is more likely an option where VAC services remain suspended and there is no other option to request a visa or obtain documents. Where VACs have reopened, there is likely to be more pushback on visa waiver requests. If there are exceptional compelling and compassionate circumstances, individuals should contact the local consulate, High Commission or British Embassy local to them to seek further assistance.

Before leaving the UK to apply from overseas

Before departing the UK to submit an application from abroad, applicants should consider their eligibility to apply from the UK in line with the Home Office’s COVID-19 switching concession. This may be an option for individuals holding a temporary UK visa for the UK which expires on or before 31 July 2020. Applications must be submitted before 31 July 2020 and the requirements of the application should still be satisfied.

If the concession does not apply and the applicant must leave the UK to submit the new visa application from abroad, they should keep up-to-date with any requirements on re-entry, such as a 14-day mandatory self-isolation. This may impact availability to attend an appointment at the visa centre.

Expiry of temporary 30-day vignettes

For applicants who were granted visas before the restrictions commenced but were unable to travel within the period of their 30-day vignette, requests can now be submitted for a replacement vignette to facilitate entry to the UK. There is no government fee for the new vignette and requests can be submitted until the end of 2020.

Requests must be submitted by email to 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 VACs re-open 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 the new vignette will be valid for 90 days.

The requirement for a temporary 30-day 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.

Before travelling to the UK

Aside from having the relevant UK visa in hand in order to travel to the UK, travellers must also check for any requirements to complete with local authorities. For example, Australian citizens and permanent residents must be granted an exemption before they can travel overseas. There is also a similar email process for South African nationals.

Since 8 June 2020, most international travellers to the UK must complete a Public Health Passenger Locator form within 48 hours of arriving in the UK. They must also complete a 14-day self-isolation period upon entry. For further details of these arrangements, see our main guide.

3. Sponsor compliance

As services begin to resume in the UK and it may be possible for some employees to return to work, sponsors will need to consider any notifications to be made to the Home Office via the SMS to ensure they are compliant with sponsor duties.

Right to work checks (RTW)

While social distancing measures have been in place, many employers will have made use of the RTW check options in line with the Home Office’s existing guidance, e.g. an online RTW check via video link for BRP holders. In cases where a fully compliant check has not been possible, the Home Office’s adjusted RTW guidance published on 30 March 2020 has assisted employers in maintaining compliance with their sponsor duties by allowing temporary checks using scanned copy documents.

As employers focus on a safe return to work for their employees, those who completed adjusted RTW checks will need to remember to carry out a further retrospective check in order to be fully compliant. The deadline for completion of the retrospective check is within eight weeks of the end of the adjusted procedure. This end date is to be announced by the Home Office and we will provide an update as and when this is confirmed. In the interim, employers should continue to retain a log of all RTW checks using the adjusted procedure so they can be completed in full later on. They may consider carrying out a compliant right to work check at the earliest point at which this becomes feasible, in order to reduce the number of checks to do immediately before the deadline.

Follow-up checks will also be required where Tier 2 and 5 applicants have commenced work before receiving a decision on their application in line with the Home Office concession of 14 April 2020. As an interim measure, employers should contact the Employer Checking Service to request a Positive Verification Notice to confirm a valid pending application. Once a decision on the application has ben received, employers should perform a valid RTW. If the application is refused, employers will be required to terminate employment to comply with prevention of illegal working guidance.

Sponsor employers are recommended to closely monitor progress for any sponsored workers awaiting a decision on their applications and retain any relevant evidence on file. Where follow-up right to work checks are due, a request for a Positive Verification Notice to the Home Office Employer Checking Service may be required in these circumstances. The need for this service will likely increase where processing times are prolonged and could take the applicant beyond the expiry date of their existing visa. 

Sponsor reporting requirements

For sponsored employees placed on furlough or affected by a temporary reduction in hours/salary, each change in their conditions will require further reporting on the SMS. Once any temporary measures have ended, a report should be made to confirm that hours and pay have returned to at least the same level as stated on the assigned CoS at the point of sponsorship.

With many businesses adapting to remote working, a future return to work may be more flexible, including remote working becoming the norm, both within the UK and from overseas. Although the Home Office has indicated in their guidance that remote working at a home address during the COVID-19 pandemic would not require reporting as it would be considered a temporary change to the work location, this will not continue to apply once offices have reopened. If remote working continues at this point, any alternative work location must be reported.

For new hires who have been delayed in entering the UK and impacted by expired temporary visa vignettes, sponsors will need to consider the timing of new vignette requests and subsequent reporting on the COS of any delayed work start date.

Where employees have commenced work on the basis of an assigned CoS, before receiving a decision on their application (see above - Leave to remain – switching to a new category or new sponsor), sponsors should maintain up-to-date files including records of any changes to the employee’s role and all other reportable changes. Until the application has been processed, it will not be possible to report these in the usual way.

International travel for employees

Although international travel from the UK should currently be avoided unless essential, some businesses will need to continue to rely on employees being able to travel as part of their role.

Before planning international business travel, sponsors should consider checking the health and safety status of the relevant country including transit countries, and any requirements on entry to self-isolate which could lead to longer absences from the UK. Employers should also ensure employees are not in a higher risk category with existing health conditions and that employees are aware of any requirements and restrictions in the country they are visiting such as social distancing and mandatory wearing of masks. As the status in each country has been seen to change quickly and without notice, sponsors should be mindful of any trips planned close to visa expiry dates where a delay in return could impact the possibility of visa extension and potentially trigger a cooling-off period for Tier 2 sponsored workers.

Sponsored employees should record all absences from the UK (date, country and purpose of visit) and, where the trip has been longer than anticipated due to COVID-19 travel restrictions, ensure this is recorded on file together with supporting evidence where possible. This may become relevant down the line in relation to an application for Indefinite Leave to Remain.

4. Indefinite Leave to Remain (ILR)

Applicants eligible to apply for ILR can continue to complete online submission but are required to satisfy all of the requirements in the usual way, including in some cases having to demonstrate passing an English language test or passing the Life in the UK test before their application can be approved. This has proven difficult with test centres closing at short notice in March 2020. However, there are signs of movement, with English language and Life in the UK tests resuming again this month.

Trinity College London has recommenced testing from 8 June onwards. Tests run by the British Council and LanguageCert are due to become available over the course of June.

Life in the UK tests are being reintroduced in a phased way, with bookings being taken for tests at a selection of centres from 1 June 2020 onwards. With limited availability and a queue of applicants waiting to book their tests, test dates are now booked up weeks ahead. Full details can be viewed when completing test bookings.

Applicants who are ready to submit their ILR application should note there is at present no fast track service available, so applications can be submitted using standard processing only. This means the processing time will be up to six months and applicants are not permitted to travel outside the UK until a decision on the application has been made. In time, UKVI will announce when they are able to resume priority and super priority processing.

The Home Office is taking steps to minimise processing times by contacting applicants and requesting supporting documents by return. Applicants should ensure the details provided to the Home Office are accurate and that emails are monitored to be able to respond to any Home Office requests for information.

As the course of the COVID-19 pandemic remains fluid, so does its impact on UK immigration. We will continue to provide updates as further details emerge. If you need help with any of the immigration issues arising from the pandemic, please contact a member of the immigration team.