COVID-19 and changes to immigration rules – Updated

The coronavirus pandemic has brought about a slew of changes to the legal system that affects both British citizens and foreign nationals working and living within the United Kingdom. Angharad Aspinall, a business immigration from our sister company Capital Law, outlines key changes.

Visa extensions for those unable to return to their home country and other temporary concessions for visa applicants.

On 24 March 2020, Home Secretary Priti Patel announced a visa extension for anyone unable to return to their home country due to travel restrictions and/or self-isolation, and whose leave expired between 24 January 2020 and 31 May 2020. This was subsequently updated to extend all visas expiring up until 31 July 2020. On 30 July 2020, a new grace period between 1 and 31 August 2020 was announced. Anyone whose visa expired between 24 January and 31 August 2020 (including extensions during this period), could continue to live and work in the UK on the terms of their previous leave. This extension was automatic.

However now that global travel restrictions are being lifted, these concessions to visa extensions and renewals are no longer available and applicants are expected to take all reasonable steps to leave the UK where possible (or if they want to stay in the UK and cannot leave, they can apply for their new visa from within the UK).

If a visa holder intends to leave the UK but has not been able to do so (i.e. because they have not been able to book a flight or they have the coronavirus) and their leave expires between 1 November and 30 November 2020, they can request ‘exceptional assurance’ i.e. additional time to stay in the UK.  If granted, this does not give the applicant leave to remain in the UK but it will protect them from any adverse consequences where they would otherwise be regarded as an overstayer. If the conditions allow, the applicant can continue working in the UK.

Applications can be made online but owing to technical difficulties, applicants are advised to email requests (see here for more details) attaching evidence of why they are unable to leave the UK.

Visa holders who would ordinarily have to leave the UK to make an application, may make a visa application from within the UK if they:

  • urgently need to make the new application or switch immigration routes; and
  • cannot leave the United Kingdom to make an application from overseas.

Most UK Visa and Citizenship Application Centres have now re-opened for existing customers. UKVCAS Service Points and Service and Support Centres are mostly open but some are only offering a reduced number of appointments. Applicants should expect delays in getting appointments or support but as long as any application is made before the expiry of their current leave the applicant can remain in the UK while an application is processed.

The government has confirmed that the UKVI service can reuse fingerprints applicants have already given. This means applicants do not have to attend a UKVCAS or an SSC service point appointment to provide biometric information. Please note this only applies to student applications.

However, they will still have to provide the UKVI with an image of their face and supporting documents, and will be emailed with instructions on how to provide this evidence. The Government has confirmed that if a Visa Application Centre is still closed, the applicant can apply online and select a Visa Application Centre in any country worldwide, subject to that country’s entry requirements, to submit their application and biometrics. This concession will be available until 31 March 2021.

If an individual’s 30-day visa to travel to the UK for work has expired, or is about to expire, they can request a replacement with extended validity dates at no extra cost. This free extension process will last until the end of 2020.

Concessions for health and social care workers

On 31 March 2020 the Home Secretary announced that various front line health and social care workers (both in the NHS and in independent businesses) including doctors, nurses and paramedics and their families will have their visas automatically extended, for one year if it is due to expire before 1 October 2020, free of charge in an effort to help combat the COVID-19 epidemic. This list was expanded considerably on 1 May 2020.

Anyone who has an outstanding application will be offered a refund. NHS staff can also work at any NHS hospital during the pandemic without notifying the Home Office, providing their sponsor can continue with their sponsor duties such as monitoring and reporting work activity. Further, NHS staff can work as many hours as they wish in any role, regardless of skill level, during the outbreak.

The idea of the extension is to allow front line staff to focus fully on combating COVID-19 instead of worrying about their visas expiring. The government has also lifted restrictions on the amount of hours student doctors and nurses can work for the NHS in order to get more doctors and nurses on the frontline.

Adding to this, pre-registered overseas nurses who are currently required to sit there first skills test within 3 months and to pass the test within 8 months will now have their deadline extended to the end of the year. This gives nurses more time to pass their exams while spending the immediate term working on the frontline.

Finally, the government has confirmed that family members of frontline workers who die from COVID-19 will be offered indefinite leave to remain.

Immigration Health Surcharge (IHS)

On 21 May 2020, the government announced that NHS and care workers will be exempt from paying the IHS (a levy on migrant workers to go towards the cost of using the NHS).  This will be welcomed particularly as the IHS increased to £624 per adult per year from October 2020.

Tier 1 Entrepreneurs

Ordinarily, those with a Tier 1 Entrepreneur visa must employ at least 2 people for 12 consecutive months each as a condition of their visa. This rule has been relaxed where business has been disrupted due to COVID-19 and the 12-month period can now be made up of multiple jobs across different months. While time staff spend on furlough will not count towards the 12 month period, if the Tier 1 visa holder has not been able to meet these requirements by the time their visa expires, they can temporarily extend their stay in order to do so. This concession will apply to Tier 1 Entrepreneur applications made after 31 May 2020, providing that the employment relied on is disrupted due to COVID-19.

Right to work checks

The government has also temporarily adjusted right to work checks to make them easier for employers to carry out.  As of 30 March 2020, checks can be carried out over video call. Applicants and existing workers can send scanned documents, or a photo of the documents for checks using a mobile App or via email. Once they are back in the workplace, a full right to work check must be carried out in the worker’s presence and recorded as normal.

Helpful guidance:

  • Employer checking service, if a prospective or existing employee cannot provide any of the existing documents
  • Full suite of employer guidance, as it is an offence to knowingly employ someone who does not have the right to work in the UK
  • Government guidance on how to conduct a right to work check in light of the temporary COVID measures, and what to do once the temporary measures have ended

Guidance for Tier 2 (General) sponsors

The Home Office has confirmed that is it waiving several requirements on sponsors in light of COVID-19. The full guidance can be found here.

Sponsors will not be required to report homeworking to the Home Office, although other changes in working arrangements will still require notification as normal.

The Home Office has confirmed that it will not take enforcement action against sponsors who continue to employ sponsored employees who are absent from work without pay for more than 4 weeks due to the coronavirus.

Given the delays in visa applications, the Home Office is also allowing sponsored employees to start employment before their visa is issued provided that they are in the UK and have a certificate of sponsorship from their intended sponsor, they applied for a visa before their current visa expired and the role they are employed in is the same as the one on their certificate of sponsorship. The sponsor’s reporting obligations however begin from the date they assigned the certificate of sponsorship to the sponsored worker, and while they will not be able to report via the sponsor management system in the usual way, sponsors must keep a record of any reportable activity. Any changes that may impact the consideration of the sponsored employee’s visa must be updated on the certificate of sponsorship as normal. If the application is rejected or refused, employment must immediately end.

If sponsors are unable to pay sponsored employees’ salaries due to shortage of trading, sponsors can reduce pay by up to 80% or £2,500 per month, whichever is lower. This reduction must be part of a company-wide policy to avoid redundancies and all workers must be treated the same. Any reduction must also be temporary, with employee’s pay returning to normal once the policy ends. This allows sponsors to access the Coronavirus Job Retention Scheme for sponsored employees.

The Home Office guidance for sponsors to confirms sponsored employees can have their pay reduced in this way, even if this means their pay falls below the prescribed minimum salary threshold, provided appropriate records are kept.

These changes should also be reported to the Home Office.

An alternative to furloughing/reducing salaries is requesting that sponsored employees take annual and/or unpaid leave. In normal circumstances, sponsored employees can take up to 4 weeks unpaid leave in each calendar year, according to their normal working pattern. For example, if a sponsored employee works 3 days per week, they can take up to a total 12 unpaid days leave per year.

Following updated guidance by the Home Office, sponsored employees are allowed to take more than 4 weeks unpaid leave if due to coronavirus. Specific examples include illness, isolation or travel restrictions. It may also include absences due to childcare responsibilities. These absences do not need to be reported but clear records should be kept.

As has been the case for many months, sponsors are not required to report home working to the Home Office but other changes in working arrangements must be reported as normal.

The Home Office will continue to accept scanned copies of supporting documents for example where a business applies to become a licensed sponsor, but the Home Office can still request original or certified copies and applications will be refused if the evidence or documents is not provided or the business does not contact the Home Office to agree an extension to the deadline to provide the information.

Home Office audits have also been suspended while the country-wide restrictions are in place.  This may impact how long an application to become a sponsor will take if the Home Office deems it necessary to carry out a pre-licence visit before granting the licence. The Government announced on 29 July 2020 that these arrangements will continue until 30 September 2020 when they will be reviewed. There have been no further announcements on this although we are not aware that audits have resumed.

Please note that sponsors should take care not to treat their sponsored employees more or less favourably because of their visa status in response to these temporary alterations to the guidance.

It is also important to keep up-to-date on developments, including in particular the new changes to the immigration system which started to take effect from 1 December 2020. If you are considering applying for or making any changes to your sponsor licence and/or sponsored employees’ working arrangements, we recommend that you first seek legal advice.

Global Talent applicants

Global Talent applicants whose endorsement has expired because they have been unable to travel to the UK may still be eligible for a visa. Moreover, if your endorsement from an endorsing body has expired because you have not been able to make an application for a visa, you may still be eligible if:

  • it was granted on or after 24 January 2020; and
  • you apply for your visa before 1 January 2021

Applications that do not meet these requirements will be considered on a case by case basis.

Temporary concessions have been implemented for Global Talent applicants who are undertaking COVID-19-related research.

Self-quarantine measures for arrivals to the UK

Upon arriving in the UK, travellers must complete a Public Health Passenger Locator form. Failure to provide the requested details can lead to entry being barred if the entrant is not British or a UK resident. The traveller may also face a £100 fine. The traveller will be provided with government-arranged accommodation at their own cost If they have not arranged accommodation.

Entrants must use personal transport where possible to travel to their accommodation and unless an exemption or travel corridor applies, they must remain in self-isolation for 14 days. They can only leave their accommodation:

  • for urgent assistance.
  • to attend a funeral or for other compassionate circumstances.
  • to buy food or medicine where they cannot have this brought to them; or
  • an emergency.

Visitors are prohibited unless they are required for essential support.

A fine of up to £1,000 may also be imposed in England and Wales if self-quarantine is breached.

This article was initially published on the website of our sister company, Capital Law.