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08 April 2020

COVID-19 and immigration: what do employers and non-EEA workers need to know?

Over the past few weeks the government has steadily released details of a number of timely and reassuring new measures that will affect both employers of foreign workers, as well as those workers themselves. However, they leave a number of questions unaddressed. In this article, we try to provide a precis of the main announcements as they relate to foreign workers, as well as the most important questions that employers, particularly sponsors, are having to grapple with. We deal here only with immigration aspects. Employment issues are dealt with in more detail in this blog.

Can Tier 2 workers be furloughed?

It appears that they can and in fact the guidance has, almost since it was first released, stated that foreign nationals are eligible to be furloughed under the government’s new Coronavirus Job Retention Scheme. Our view has always been to try wherever possible to treat all staff in the same way, so as to minimise the possibility of discrimination claims. The most obvious risk area is selecting which employees to furlough. If the selection is overtly on the basis on nationality, or there is evidence to suggest that, for example, Tier 2 sponsorship was a determining factor in determining which employees are to be furloughed, the risk of discrimination claims will logically increase.

Helpfully, the Home Office has confirmed that the obligation for employers to withdraw sponsorship from employees who have been absent on unpaid leave for four weeks has been temporarily suspended in respect of employees affected by the coronavirus outbreak. However, sponsor licence holders should still report the absence via the Sponsor Management System as well as any reduction in salary.

What about minimum salaries for furloughed workers?

This has been one of the big grey areas so far in relation to workers sponsored under Tier 2 of the Points Based System. Whilst it is reassuring that all workers can be furloughed regardless of nationality, there is an added problem for sponsored employees given that there are minimum salary requirements for the jobs that they do. For those on restricted certificates of sponsorship that minimum is at least £30,000.

Sponsors have to report salary reductions. If the reduction brings the salary of a sponsored worker below the ‘appropriate rate’ designated in the Standard Occupational Classification Codes, employers and employees have been wondering whether would that mean that the employee is now no longer complying with the terms of their visa.

Employers have been in a very difficult position, particularly given the speed with which they are having to make decisions on furloughing staff. Topping up only the salaries of sponsored workers could potentially be viewed as discriminatory treatment. Ploughing ahead regardless could have left sponsored employees high and dry when they came to renew their visa, or at an earlier stage given that employers are under an obligation to report salary reductions.

However, the latest Home Office guidance now confirms that salary reductions as a result of furloughing are permitted (although the furlough scheme isn’t specifically referred to). The reduction can be to 80% of salary or £2,500 per month, whichever is the lower, provided that such reductions are only temporary and are part of a company-wide policy to avoid redundancies and in which all workers are treated the same.

Is CJRS money public funds as defined by the Immigration Rules?

Many non-settled employees on time-limited visas may be concerned about being designated by their employer under the Coronavirus Job Retention Scheme, in case by receiving funds they are in breach of one of the conditions of their visa (ie that they must not be in receipt of public funds). The CJRS is not included within the definition of public funds at paragraph 6 of the Immigration Rules. Also, the funds would be received by their employer rather than directly by the employee in any event. Accordingly, it seems that the obligation not to have recourse to public funds would not be breached by designation as a furloughed worker.

Do sponsors need to report on employees who are working from home?

Temporarily, sponsors currently do not need to notify the Home Office if sponsored employees are working from home as a result of the coronavirus crisis.

Applying to stay in the UK long-term

A real bonus, albeit temporary, for those frustrated by the often impractical and illogical requirement for applicants for long-term visas to apply from overseas is a relaxation of that requirement. Now, applicants who are in the UK with leave expiring between 24 January 2020 and 31 May 2020 can apply from the UK to switch to a long-term UK visa until 31 May 2020 instead of returning home to do so.

Extensions to expiring visa between 24 January 2020 and 31 May 2020

The Home Office has also announced that those who are in the UK with leave expiring between 24 January 2020 and 31 May 2020 and who cannot leave the UK to return home due to COVID-19 will have their visas extended until 31 May 2020 if they fill out an online form, although it is not clear how this will happen as a matter of law (at the moment it seems to be a form of policy concession).

This does not appear to apply to those who need to extend their visas and who we would advise apply on or before the expiry date of their current visa in the usual way, regardless of the unavailability of biometric appointments.

What about the expiry of Certificates of Sponsorship if people can’t apply for visas?

UK Visas will not automatically refuse visa applications where the start date has changed as a result of the coronavirus. The updated guidance also suggests that applications will not be refused if certificates expire (given that they have to be used by applicants within three months of the date they were assigned to them by their prospective sponsor). Apparently, UK Visas will consider these situations on a case-by-case basis.

There does not seem to be much else in the guidance about overseas applicants other than a general statement that English language testing centres and application centres are closed. One would hope UK Visas will be similarly pragmatic.

What about those holding 30-day permits to enter the UK who now can’t travel to the UK within the 30-day window because of coronavirus?

There currently does not appear to be any concession for people with a 30-day visa giving permission to enter the UK but who are unable to do so before it expires. Ordinarily an application could be made for a transfer of conditions in order to renew the 30-day vignette. It is unclear if such applications would be appropriate once the lockdown eases or whether UK Visas will simply allow people to travel on the expired vignettes. We await further guidance on this.

Right to work checks

Anyone who has a Biometric Residence Permit (BRP) or status under the EU Settlement Scheme (EUSS) can prove their right to work online here.

In any event, right to work checks have temporarily been adjusted due to coronavirus. Checks can now be carried out over video calls and prospective employees and current staff can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending their originals. If a prospective or existing employee cannot provide any of the accepted documents the guidance still recommends that employers use the Employer Checking Service.

Employers should probably need to be prepared to repeat the check with the original documents once the lockdown has ended.

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