Coronavirus and Tier 2 Sponsorship

31 / 03 / 2020

Employers with a Sponsor Licence for Tier 2 sponsored employees will need to ensure that they continue to comply with record keeping and reporting obligations during this difficult time.

However, the Home Office are taking an uncharacteristically pragmatic approach to assist employers struggling to manage the new realities.

Working From Home

Employers normally need to report a change of work location for sponsored employees within 10 working days. However, the Home office have announced that there will be no duty to report that a sponsored employee is working from home where this is because of coronavirus.

Sponsored Employee Sick, Self-Isolating or Outside the UK

Any absence from work “due to the coronavirus outbreak” may be treated by employers as an “authorised absence” for sponsorship purposes. Whilst employers should still maintain records of absence from work there is no requirement to notify the Home Office.

Withdrawing Sponsorship for Unpaid Absence

The Sponsor Licence Guidance requires employers to withdraw sponsorship for any sponsored worker who is absent from work without pay for four weeks or more in any year.

However, the Home Office have stated that they recognise that the current situation is exceptional and they will not take any compliance action against sponsored employees or their sponsoring employers if the absence is due to COVID-19.

Employers can, therefore, decide whether they wish to withdraw sponsorship and stop employing the worker or continue to sponsor, even if the employee is not working, if this is related to coronavirus.

I would advise any employers in this situation to review the position on a regular basis and ideally keep a record to show that the decision to continue was due to the exceptional coronavirus situation.

Coronavirus Job Retention Scheme (Furloughed employees)

Tier 2 sponsored workers have a condition imposed on their immigration status prohibiting them from receiving “public funds” in the UK. Are they allowed to be paid under the Coronavirus Job Retention Scheme which allows employers to claim up to 80 per cent of employees salary where employees are furloughed due to COVID-19?

I haven’t been able to find any specific reference to this under the terms of this new scheme, however, there are two important points which are relevant here.

Firstly, the term “public funds” has a very specific meaning in immigration law. The Immigration Rules list, at some length, the benefits that count as public funds. These include, attendance allowance, Universal Credit, council tax reduction and child benefit. The definition has not been amended or updated to include Coronavirus Job Retention Scheme payments.

Secondly, the claim is made by the employer and not the employee so it is hard to see how this would be considered a claim on public funds by a sponsored worker.

Sponsored Worker Visa Expiring and Due to Leave the UK

Tier 2 sponsored workers whose permission to work in the UK expires between 24 January and 30 May will be able to extend their status until 31 May by contacting the Home Office Coronavirus Immigration Team if they cannot leave because of travel restrictions or self-isolation related to COVID-19/.

These workers will not be regarded as over-stayers or be penalised in any way provided that they contact the Team. The permission to continue to stay in the UK will be on the same basis as the expiring permission – so for Tier 2 sponsored workers they may continue to work in the job for which the original certificate of sponsorship was issued. A new certificate of sponsorship is not needed in this situation.

We may see this date extended further in the future depending on relevant Government guidance on travel and self-isolation.

Sponsored Worker Visa Expiring and Extension Application Due

It is great news that the Home Office have announced this afternoon (31 March) that NHS front line workers will have their visas automatically extended.

The arrangements apply to doctors, nurses and paramedics (and their family members) with visas that will expire before 1 October 2020. The extension will be free of charge (immigration fees and the Immigration Health Surcharge exempt) and will be for a period of one year.

For other sponsored workers it is important to ensure that visa extension applications are submitted before the current visa expires. Applications can be made on-line.

Once the application has been submitted on-line and the relevant fee paid, the right to work of the worker is extended until a decision is made on the application – even if this is later than the original expiry date. We anticipate processing times will increase significantly over the coming weeks and months and as biometric enrolment centres are closed until further notice this will inevitably delay decision making.

Non-Sponsored Worker Visa Expiring and Want to Stay in the UK

The Home Office have relaxed some of the usual restrictions on switching immigration status from within the UK which would normally require an overseas national to leave the UK and make a fresh immigration application from overseas.

Those in the UK with a short term immigration status may now be able to switch into Tier 2 sponsored status from within the UK provided that their current permission to be in the UK expires between 24 January and 31 May and they meet all of the other requirements of Tier 2.

This is a very limited exception and I do recommend obtaining full legal advice before proceeding to ensure that this does not result in a refusal.

Right to Work Checks

Employers should always make a right to work check to ensure that a prospective employee has permission to live in the UK and to accept the type of job offered. This should be done before the job starts and the employer should see the original immigration documentation proving the right to work. The checks will need to be repeated from time to time to ensure that existing employees, who have a time limit to their status, obtain an extension and do not overstay.

Temporary COVID-19 concessions have been introduced to make this easier for employers – this applies to all employers not just those with a sponsor licence.

The job applicant/existing employee can now send the employer a scanned document or a photo of the documents by email or mobile app. There is no need to produce the originals. The employer can then check these with the worker via a video call to ensure that the picture and details match the appearance of the worker.

If applicants are not able to provide copies of any of the relevant documents then employers can continue to use the Home Office Employer Checking Service.

It is important to note that the requirement for a right to work check has not been removed and that the documents needed have not been changed – it is just the method of viewing and verifying the documents that has been simplified.

Conclusion

These are difficult times for all employers and those managing a multinational workforce have additional challenges. Please feel free to contact me if you need any guidance on immigration matters.