Amid the global pandemic swathing across the globe, there are many people who have not been living in their country of residence for many reasons including family and work commitments.
Messages from governments have been subject to change, due to the nature of the situation.
The Home Office has released information following latest guidance from Public Health England.
Along with all areas of society that have had to continue the same since the outbreak, and the close contact nature of the conditions, there has been obvious concern around the health and safety of those people who are detained in the immigration system, and the hardworking individuals working within it.
The High Court ruled on 26 March, that the current approach to detention and Covid-19 contained appropriate measures regarding the health and wellbeing of those detained and the workers involved.
As the enforcement agency dealing with high-harm foreign nationals that are detained, Immigration Enforcement oversees the law and order surrounding it.
We recommend that those who are being detained and their loved ones keep a continual awareness of the situation, and there are some questions with associated answers on a factsheet from the Home Office website.
EU Settlement Scheme
Open since 30 March, 2019, the EU Settlement Scheme has already seen more then three million granted status in the UK. Covid-19 has caused a temporary change to how the system works following guidance from Public Health England. These new guidelines will run for the foreseeable future, as countries around the globe deal with the pandemic.
The deadline for applications is not until 30 June, 2021 so there is still plenty of time to apply.
Updates for Visa Holders, Short-term Residents in the UK and Sponsors
On 9 April, the UK Home Office provided further information for those in the UK holding visas and living here short term.
These measures allow for the fact that due to global travel restrictions, there are many displaced from their country of origin and cannot return until the pandemic has run its course.
The Home Office is continuously updating its information as the situation changes, and there are more people affected in different ways.
Providing factsheets for differing circumstances and situations, there is a wealth of information on government websites to ensure that those looking for information will be able to find the part relevant to them.
We are continuing to keep providing information along with governmental offices to ensure that our clients are as informed as possible.
Covid-19 factsheet: Visa holders and short-term residents in the UK
The factsheet for visa holders and short term residents includes information on:
- Extending a visa
- Switching visas
- Completing their application
- Additional Services
Although functioning as normally as possible, there are many areas within the UK Immigration Service that are currently temporarily closed, including the UK Visa and Citizenship Application Centres (UKVCAS) and Service Support Centres (SSC’s).
No individual’s immigration status will be negatively affected as a result of not being able to attend appointments.
For more information, view the associated factsheet.
Covid-19 factsheet: Guidance for sponsors
The factsheet providing guidance for sponsors includes information on:
- Absence reporting
- Tier 4 - Distance learning
- Certificate of Sponsorship (CoS) or a confirmation of acceptance for studies (CAS)
- Tier 4 visa application to be decided
Throughout lock down, visa applications can still be made and although not working normally, cases are still being processed ready to be progressed when restrictions in the UK are lifted.
Immigration & Borders
The UK Immigration Service has a series of fact sheets that are easy reference for those with queries.
For more information, view the associated factsheet.
Covid-19 and Right to Work Checks Update
The Government has provided updated advice for employers who are recruiting new members of staff and need to conduct remote ‘right to work’ checks. This is particularly important for employers such as supermarkets, pharmacies who are doing increased deliveries and agriculture who are recruiting large numbers of additional staff at short notice.
There are three ways to complete the right to work checks.
Conduct a manual checkMost employers still rely on manual right to work checks. Until now, the employer had to see the physical passport, biometric residence permit etc. Employers can continue to use the ‘right to work checklist’ and conduct a manual check visa video link. The employer should follow these steps and ask the worker 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 worker – 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”. Employers must retain the copy of the document, and set a reminder to check again before limited leave to remain in the UK expires.
Conduct an online checkIf 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. This allows the employee to view the worker’s Home Office record. The record will show a photograph, personal details and whether there are restrictions on their right to work. The worker must grant you permission to conduct this check by giving you their 9 character share code. Employers must access the portal themselves and not rely on a print out provided by the employee.
Use the Employer Checking ServiceA number of non-EU workers may have submitted an application to the Home Office but not have received a decision yet. In this instance, their immigration documents may have expired, but they may still have the right to work while their new application is being considered. This will be the case for increasing numbers of people. In this instance, employers can use the Employer Checking Service.
- Obtain worker’s permission to conduct the check
- Ask worker to provide the following:
- full name
- date of birth
- job title
- hours worked per week
- home address
- Home Office reference number or case ID (if they have either)
- Complete the online form and submit to the Home Office
- Receive a verification notice from the Home Office. Provided that the notice is positive, the worker can now start work.
- Set a reminder to check again before the positive verification notice expires.
Usually, a worker will receive a decision within 6 months. However, as applicants cannot currently submit their biometrics to the Home Office, decisions are likely to be significantly delayed. It is therefore important to re-check every 6 months until a decision is received.
Other Important Points:
It is also important to remember that the usually law regarding discrimination continues to apply. It is not lawful to discriminate against a potential worker simply because of their immigration status.
At the present time, employers can still accept EU/EEA passports or national ID cards as evidence of a right to work.
If you are not sure whether a potential worker has the right to work, or require any other advice, please contact us here.
Frequently Asked Questions
Tier 2 Sponsorship questions:
- Can Tier 2 employees work from home? Do I have to report this?
The Home Office have confirmed that Tier 2 employees can work from home during the Coronavirus outbreak. You do not have to report this, as long as it is related to the pandemic. However, it would be advisable to keep a record that the employee is working from home and the reason for this.
- What about employees who are absent from work?
The Home Office released a statement in February which said that; “The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason.
The Home Office will keep this under review, especially if the length of absences mean a potential repeat of period of studies become necessary.
If an employee is absent for any reason connected to the Covid-19 virus, employers can continue to sponsor them, provided that they authorise the absence. This could mean;
- Being ill themselves
- Looking after a relative who is ill with the virus
- Self isolating due to direct contact with a person with suspected Covid-19
- Absence due to the workplace being closed or partially closed
- Employees who are stranded abroad.
However, this will not help you if the sponsored employee is absent for a different reason. Sponsors should therefore keep a record of authorising the absence and how it is connected to the pandemic.
- Can I grant unpaid leave?
Sponsors have always been able to grant unpaid leave of up to 4 weeks per year. Based on the statement above, sponsors should not be penalised if they grant longer periods of unpaid leave if it is connected to the Covid-19 outbreak.
- Can I reduce an employee’s hours and pay?
Sponsors have always been able to reduce their employee’s hour and pay. However, it is important that their rate of pay does not drop below the appropriate rate for the role.
It’s important to remember that the required rate of pay set out in the standard occupation codes can be pro-rated down. The minimum rate of £30,000 for experienced workers and £20,800 for new entrants cannot. Particular care needs to be taken with sponsored employees whose salary is already at the lower end of what is permitted.
- Can I put employees of ‘Furlough’ leave?
This has not yet been confirmed by the Home Office and details remain vague. However, provided the reason for the leave is connected to the Covid-19 outbreak, then I can see no reason why Tier 2 employees should be excluded from this. Again, consider whether their rate of pay remains above the appropriate rate.
In addition, it would appear perverse if employers can put Tier 2 employees on extended authorised unpaid leave, but not on authorised part- paid leave. If in doubt, employers could consider ‘topping up’ salaries to the appropriate rate. Find out more about furlough leave.
- I have assigned a certificate of sponsorship but now the applicant cannot submit their visa application.
Provided that the application for a Tier 2 visa has not been submitted, you can changed the work start date to a date further into the future. However, keep in mind that the certificate of sponsorship will expire 3 months after it is granted. It must be used to submit an application by that date.
The applicant cannot apply more than 3 months before their start date. This means that the new start date cannot be more than 3 months after the date that the certificate of sponsorship expires. In a lot of cases, it may be easier to simply withdraw the certificate of sponsorship and assign a new one at a later date. You should receive a refund of the Immigration Skills Charge if you do this.
- I have an employee with entry clearance but they cannot travel. What do I do?
You can delay their start date by up to 28 days. After that, the current guidance remains that you should report their absence to the Home Office.
If you are in this position, you may wish to seek advice.
- What about my other sponsor duties?
All other sponsor duties remain in place. Sponsors should remind themselves of these, and consider how they will meet them in these new circumstances. Particular through should be given to;
- Monitoring attendance when employees are working from home
- Maintaining records of absences and their reason
- Recording changes in pay and hours
Cartwright King has lawyers in many areas of law, and the information we are sharing has been written by immigration lawyer Rita Kotecha.
For specialist advice in any of our areas of law, please call us or email your enquiry using the form below.