In response to the coronavirus (COVID-19) pandemic, the Home Office has implemented various concessions for employers in the UK, relating to the right to work checks/prevention of illegal working regime, and specifically for licensed sponsors.
A summary of these concessions, which are only temporary, is set out below.
Right to work checks/prevention of illegal working regime
Key right to work checks/prevention of illegal working regime related concessions for employers, which were announced by the Home Office on 30 March 2020, are summarised below:
- employers can ask an individual to submit a scanned copy or a photo of their original document(s) via email or by using a mobile app, rather than original(s)
- a video call can be arranged with the individual, and they should be asked to hold up the original document(s) to the camera and the employer should then check them against a digital copy of the document(s) in the employer's possession
- the employer should record the date on which the check was made and mark the document with the following wording: "adjusted check undertaken on [insert date] due to COVID-19"
- if the individual has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme "the employer can use the online right to work checking service (online right to work checking service) while doing a video call – the applicant must give you permission to view their details"
The Home Office has confirmed that it will let employers know in advance (but not how far in advance) of these concessions ending and that after they end employers will need to adhere to the normal right to work checks/prevention of illegal working regime that was in place immediately before 30 March 2020.
After these temporary concessions come to an end, the Home Office has confirmed that employers will need to carry out retrospective checks on then current employees who started working for them during the concessions period, or who required a follow up right to work check during that period. These retrospective checks must be carried out within eight weeks of the concessions period ending.
Further, both sets of right to work checks documents must be kept for employers' records and the retrospective checks should be marked as follows: "the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19".
Further, the Home Office has indicated that:
"The Home Office will not take any enforcement action against you if you carried out the adjusted check set out in this guidance, or a check via the Home Office, and follow this up with the retrospective check.
If, at the point of carrying out the retrospective check, you find your employee does not have permission to be in the UK you must end their employment.
If the check you have undertaken during the adjusted period was done in the prescribed manner, you do not need to undertake a retrospective check."
The Home Office has reiterated that "it remains an offence to knowingly employ anyone who does not have the right to work in the UK". Hence, these temporary concessions do not decrease the need for employers to fully comply with the right to work checks/prevention of illegal working regime or the associated sanctions for non-compliance.
Concessions for Tier 2 and/or Tier 5 sponsors
Key concessions specifically for Tier 2 and/or 5 licensed sponsors, which were announced by the Home Office on 27 March 2020, are summarised below:
- the Home Office will not take enforcement action against licensed sponsors that continue to sponsor employees despite absences due to COVID-19
- there is no need to report employee absences related to COVID-19, which can include absences due to illness, a need to isolate or an inability to travel due to travel restrictions
- there is no need to withdraw sponsorship if because of COVID-19 an employee is absent from work without pay for more than four weeks
- there is no need to notify the Home Office of sponsored employees who are working from home due to COVID-19
- if a Tier 2 or 5 sponsor cannot pay the salaries of sponsored employees because the sponsor has temporarily reduced or ceased trading, they can temporarily reduce the pay of their sponsored employees "to 80% of their salary or £2,500 per month, whichever is lower". This can be used in conjunction with the Coronavirus Job Retention Scheme
- any such pay reductions must, however, "be part of a company-wide policy to avoid redundancies and in which all workers are treated the same"
- such pay reductions must be temporary and the affected employees' pay must return to at least previous levels once "these arrangements have ended"
- if a Tier 2 and/or 5 sponsor has issued a Certificate for Sponsorship but the start date of employment stated therein has fallen away because of the impact of COVID-19, the Home Office says it "will not automatically refuse such cases" and will consider them on a case by case basis
- sponsored employees who access the Coronavirus Job Retention Scheme will not be considered to be accessing "public funds", which is otherwise generally prohibited
Further, Home Office guidance published on 14 April 2020 states as follows:
"If you're sponsoring an employee who's waiting for their Tier 2 or 5 visa application to be decided"
You may allow employees to start work before their visa application has been decided if:
- you have assigned them a CoS
- the employee submitted their application before their current visa expired
- the role they are employed in is the same as the one on their CoS
Your reporting responsibilities for an employee start from the date you have assigned them a CoS, not from the date that their application is granted. You will not be able to report information to us using the sponsor management system. You must however ensure that you record and maintain all the relevant information set out in the sponsor guidance on your own systems. Any changes that will impact the eventual consideration of the migrant's visa application should be updated on the CoS, as normal.
If the employee's application is eventually rejected as invalid or refused you must terminate their employment.
However, if the fact pattern reflected in the 14 April 2020 concession applies to a licensed sponsor, they should obtain advice before relying on it because elements of the concession are unclear. For instance, it is unclear whether (i) this concession is only available for individuals who are already in the UK in possession of a UK visa and, if so, which types of previously held visas are covered and (ii) whether the concession only applies where previously held UK visas expire by a particular date, such as 31 May 2020.
Whilst these concessions will provide a degree of flexibility for employers and licensed sponsors as the pandemic continues, it is important that they appreciate that the concessions are merely temporary, that they are being kept under review by the Home Office and could conceivably be withdrawn at any time with minimal advance notice.
Therefore, whilst we hope the Home Office will provide licensed sponsors and employers more generally with sufficient advance notice of these temporary concessions being withdrawn, it is important that relevant staff members (such as HR professionals and members of Key Personnel) regularly review the Home Office website to check for updates. The Home Office may also provide licensed sponsors with updates directly via the Sponsorship Management System and/or by correspondence sent directly to members of Key Personnel.
Visa applications delays
Since 30 March 2020, UK Visa and Citizenship Application Services (managed by the Home Office's agent Sopra Steria) have been closed.
These are centres in the UK at which individuals can complete their applications for visas or other UK immigration statuses (including for sponsorship visas or indefinite leave to remain or UK citizenship) and enrol their biometric data (eye scans and fingerprints) prior to applying. Further, appointments cannot currently be booked online to attend those centres.
Hence, at present it is not possible for individuals to apply to extend or switch their sponsorship visas or to apply for other UK immigration statuses whilst in the UK.
Further, at present all overseas UK visa application centres are closed. These are centres at which individuals can apply, whilst outside the UK, for sponsorship based or other UK immigration statuses.
It is not clear when these application centres will reopen. When they do reopen there will almost inevitably be a backlog in visa applications and longer processing times. Sponsors and other employers who have prospective or current staff who are affected by these closures should regularly check the relevant visa application centre websites for updates, depending on the countries in which the visa applications are being submitted.
We would be happy to answer any questions relating to the matters summarised above.
This summary form commentary does not give a full statement of the law or constitute legal advice. This commentary reflects Home Office guidance as at 16 April 2020 and the position summarised herein is subject to change. No responsibility for any loss caused as a result of any person or other party acting or refraining from acting relying on this commentary can be accepted by Russell-Cooke LLP.