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Covid-19 & UK Immigration

Q&A

The global Covid-19 crisis and lock-down is raising numerous queries on everyday life, and we discuss here the impact of those within the UK immigration system. This will be regularly updated as and when further guidance from the Home Office is provided.

All official Home Office guidance relating to Covid-19 and the UK immigration system can be found HERE.

All employers – Legal Right to Work Checks for all employees

Temporary changes to Legal Right to Work Check requirements were announced by the Home Office on 30th March 2020. Please see here our detailed update on these changes HERE.

When these Covid-19 measures are ended, employers will have eight weeks to conduct a fully compliant LRTW Check in line with previous requirements if they have used the temporary method.

For clarification, retrospective LRTW Checks post-Covid-19 will not be required if a normally compliant LRTW Check has been carried out, either the in-person check or using the online share code, or if using the Employers Checking Service, because these do not fall within the temporary measures.

Tier 2 Sponsored Migrants

1   Can Tier 2 sponsored migrants be put on unpaid leave?

Yes. Ordinarily, a Tier 2 sponsored migrant is permitted up to four weeks of unpaid leave in any calendar year. Any more than that and their sponsorship must be ended by their Sponsor.

However, the Home Office has confirmed that excess absences beyond four weeks are permitted if due to Covid-19. This could be due to illness, self-isolation or travel restrictions. Sponsors are not required to report such absences.

We recommend that Sponsors retain evidence of such reasons for absence on the sponsored migrant’s personnel file.

2   Is the Coronavirus Job Retention Scheme available to Tier 2 sponsored migrants?

Yes. The Home Office has confirmed that the salary of sponsored migrants can be reduced to 80% of their salary or £2,500 per month, whichever is the lower. This is in circumstances where the business cannot pay the salaries of sponsored workers because of a reduction or cease in trading.

This is only permitted where such reductions are part of a company-wide policy to avoid redundancies and in which all workers are treated the same. This means sponsored workers cannot be treated more or less favourably than non-sponsored workers.

These reductions must be temporary, and the migrant’s salary must return to at least previous levels once these arrangements have ended.

Any change in salary must be reported against the sponsored migrant’s CoS within ten working days. We also recommend documentary evidence of the reason for the reduction is retained on the individual’s personnel file.

For further information on the Government’s Scheme, please refer to our Employment team’s update HERE.

3   What reporting requirements are there if a Tier 2 sponsored migrant is working from home because of Covid-19?

The Home Office has confirmed that Sponsors do not need to report a change in sponsored migrants’ work location if as a result of Covid-19 measures.

All other changes to sponsored migrants’ employment must be reported, including if the work location change is not as a result of Covid-19.

4   Can a Tier 2 sponsored migrant have their working hours reduced?

Yes, although minimum salary requirements for the visa category must be adhered to and sponsored migrants must be treated the same as all other workers. In addition, if the sponsored migrant’s CoS is a shortage occupation CoS, there is a minimum of 30 hours per week required. The Home Office has given no indication that this requirement is to be relaxed.

Any change in working hours and/or salary must be reported against the sponsored migrant’s CoS within ten working days. We also recommend documentary evidence of the reason for the reduction is retained on the individual’s personnel file.

5   Are there any changes to supplementary employment provisions for Tier 2 sponsored migrants?

The normal position is that Tier 2 sponsored migrants are permitted to take on supplementary employment additional to that specified on their CoS, provided such work is within the same SOC Code as their CoS and for no more than an additional 20 hours per week outside of their normal working hours.

If a Tier 2 sponsored migrant wishes to take on other work, which does not meet the supplementary employment provisions above, they will need a CoS from a Tier 2 Sponsor for the secondary employment and to then make a Leave to Remain application against that CoS.

Alternatively, a Tier 2 sponsored migrant can undertake any kind of voluntary work provided it is unpaid (except for reasonable expenses).The Home Office has confirmed to us that these provisions remain in force.

6   My employer is making me redundant or ending my employment as a result of Covid-19 – what can I do?

If your employment is being terminated, your Sponsor must report the end of your sponsorship within ten working days of your last date of employment. This will trigger a curtailment of your visa – i.e. it will be shortened – and the Home Office will write to you to confirm this. The curtailment period is normally 60 days from the date of the Home Office letter, unless your visa was scheduled to expire before this period.

During the curtailment period, you are permitted to apply to remain in the UK in either Tier 2 or another immigration category for which you are eligible. You must submit such an application before the end of the curtailment period or your visa expiry date. The submission date is the date you submit a valid application form online and pay the application fees. You do not need to have attended a biometrics appointment before the end of the curtailment period or visa expiry date.

If you are applying to remain in the UK as a Tier 2 migrant, you will need to have a new CoS assigned to you by a new Sponsor in order to submit your application.

If you do not submit an application to remain in the UK within this period, you must leave the UK in order to avoid becoming an overstayer. However, if your visa/curtailment period is scheduled to expire between 24th January – 31st May 2020 and you cannot leave the UK because of Covid-19, you may be able to request an extension of your visa. Please see further detail on this below.

7   I have recently been granted a Tier 2 visa, but I cannot travel to the UK due to Covid-19 measures – can my work start date be delayed?

Yes – your Sponsor must report your delayed start date within ten working days of you starting work in the UK.

Ordinarily, if you are a Tier 2 (General) migrant, you must normally start work in the UK within 28 days of either the visa approval date or the CoS start date.

The Home Office has confirmed that CoSs may not become invalid if you are unable to travel to the UK as a result of Covid-19 – however, this will be considered on a case-by-case basis.

8   My employer has assigned a Tier 2 CoS to me and I am waiting for my leave to remain application to be decided. Can I start work?

Employees may start work before their applications have been decided if:

A CoS has been assigned

The application was submitted before their current visa expired

The role is the same as set out on the CoS

In this situation an employer’s reporting responsibilities for the employee start from the date the CoS was assigned, not from the date the application for leave to remain was granted.

9   My employer has obtained a Tier 2 CoS for me but I am unable to sit an English Language test due to the closure of test centres. Do I have any options?

It is a requirement for Tier 2 (General) migrants to satisfy the English Language requirement. The Home Office has not announced any relaxation of this requirement at present.

10   I am an employer and I have applied for a Tier 2 Restricted CoS – given the circumstances will the validity of the CoS be extended beyond three months?

We have not seen any confirmation of this from the Home Office.

Sponsor notes are permitted following assignment to change the start/end dates if being made prior to the CoS being marked as Used.

11   Will the Resident Labour Market Test be valid beyond the six months that is currently permitted?

The Home Office has not issued any guidance to extend the validity period of the RLMT.

Tier 2 Sponsor Licences

12   How do I submit a Sponsor Licence application if we are on lock-down and unable to get to a Post Office?

The online application form can still be submitted and application fee paid. Ordinarily, the original signed Submission Sheet and all original or certified copy documents must be sent in hardcopy format within five working days of the online submission.

We recommend emailing the Sponsor Licensing Unit to request if the application documents can be accepted electronically. There is no guarantee this will be accepted.

13   We do not have original documents – what alternatives can be submitted?

All documents must be originals or certified copies. At present, the Home Office has not confirmed any relaxation of this requirement. However, as above, we recommend checking with the Sponsor Licensing Unit if they will accept electronic documents.

14   Are compliance audits still being carried out?

With the social distancing measures in place across the country, we do not expect compliance audits to take place unless they are urgent. However, the Home Office has not confirmed this.

15   Are there any other changes to Sponsor obligations?

No. Unless otherwise stated in this document, the Home Office has not confirmed any other changes to Sponsor obligations.

16   Our Sponsor Licence needs renewing – can we still do so?  

Yes, and the Home Office has given no indication this will not be required.

Renewal is a quick process involving the payment of a fee via the Sponsor Management System. Ordinarily, we recommend that clients have ready the necessary four items of documentation which may be requested by the Home Office. If these documents are not ready in time, the renewal should still be submitted.

17   How do I send Submission Sheets to the Home Office to report changes if we cannot get the Authorising Officer to sign the document due to Covid-19 or if the Post Office is closed?

Most Submission Sheets do not require an Authorising Officer’s signature – only those appointing a new Authorising Officer or Representative, or where the whole or part of a Sponsor Licence is being surrendered.

We recommend checking with the Sponsor Licensing Unit if they will accept your Submission Sheet electronically, but there is no guarantee on this.

Migrants already in the UK

18   My visa is expiring and I have submitted my application online – can I attend a biometrics appointment?

All biometrics centres are currently closed. Any appointments not yet attended have been cancelled and will be automatically rescheduled in due course when the centres reopen.

If you have submitted a valid application online and paid the application fee, your application is considered to have been submitted “in time” and you have the legal protection of Section 3C leave.

This means the terms of your current visa are effectively extended whilst your application is being processed and you will not be classed as an overstayer. You should not travel overseas until your application has been processed or the Home Office will consider your application as withdrawn.

19   I recently attended a biometrics appointment, will my application still be processed?

Yes, but it may be delayed. The Home Office has not confirmed whether caseworking on existing applications is continuing although indications suggest it is.

20   My visa is expiring and I cannot leave the UK due to Covid-19 self-isolation, border closures or flight cancellations – what can I do?

Individuals who are in the UK legally and whose visa is due to expire or has expired between 24 January 2020 – 31 May 2020, and who are unable to leave the UK because of Covid-19, will be granted an extension of their visa up to 31 May 2020.

The purpose of this unprecedented measure is to ensure that migrants do not become overstayers or suffer any future detriment as a result of Covid-19 travel restrictions.

Affected individuals must contact the Coronavirus Immigration Team (CIT) in English by email or telephone to:

[email protected]

0800 678 1767 (Monday to Friday, 9am to 5pm) (free of charge)

The following information must be provided:

  • full name (include any middle names)
  • date of birth (dd/mm/yyyy)
  • nationality
  • previous visa reference number and/or current visa details
  • reason why an extension of stay in the UK is required, for example if a border has closed, all flights are suspended to home country or the visa holder is in self-isolation

The CIT will acknowledge receipt of requests to extend visas to 31 May 2020 and confirm when the visa has been extended.

The extension will take the form of an update on UKVI immigration databases. New Biometrics Residence Permits (“BRPs”) will not be issued.

We recommend that copies of all correspondence with the Home Office in relation to individual requests is retained for personal visa records.

Any period of extension granted through this measure will not be held against individuals in future applications.

21   I am in the UK as a Visitor but cannot leave due to Covid-19 – what do I do if my days in the UK exceed 180 days in 12 months?

As per the above, Visitor migrants who cannot leave the UK as a result of Covid-19 restrictions should email the CIH to request an extension of their visa.

22   The visa I need to apply for requires me to apply from outside of the UK, but I cannot leave the UK at present – what do I do?

Individuals who would normally need to leave the UK in order to submit an application for a UK visa will be exceptionally permitted to submit that application from within the UK, until 31 May 2020.All of the criteria associated with the immigration category being applied for will still need to be satisfied.

Examples of individuals who may benefit from this new measure will include those who are in the UK as Visitors or Tier 5 (Youth Mobility) migrants and who wish to remain in the UK in another immigration category such as Tier 2 or Spouse.

When the application is submitted from within the UK, the Home Office has confirmed that Section 3C Leave will apply. This means that the terms of the visa which the applicant is currently on will be extended whilst the new application is being decided.

23   I am an NHS worker, are there any provisions specific to me?

The Home Secretary, Priti Patel, announced the following provisions on 31st March 2020:

  • Doctors, nurses and paramedics employed by the NHS, together with their family members, and whose visas are due to expire before 1 October 2020, will have their visas automatically extended, free of charge, for one year and will not be subject to the immigration health surcharge.
  • This automatic extension will involve the return of BRPs in order that new ones can be issued.
  • The restriction on the amount of hours student nurses and trainee doctors can work in the NHS during term time has been removed.
  • Pre-registered overseas nurses who are currently required to sit their first skills test within three months and pass the OSCE within eight months, will now have until the end of the year to complete this.
  • Existing applications received for indefinite leave to remain will be processed.
  • Individuals who have applied to switch visas will be prioritised.The full announcement can be found here: https://www.gov.uk/government/news/nhs-frontline-workers-visas-extended-so-they-can-focus-on-fighting-coronavirus

In addition, those in the UK as Visitors, for example Doctors on clinical attachments who are eligible to secure GMC registration, or those Doctors who have recently passed their PLAB, can now apply for a Tier 2 visa from within the UK. Further detail on this is set out below.

24   My visa is expiring and I need to apply for Indefinite Leave to Remain – can I still do so?

Yes. The application can be submitted online and the application fee paid. Provided this is done before your visa expires, you will have legal Section 3C leave whilst your application is being decided, despite not being able to attend a biometrics appointment at the current time.

You must have your Life in the UK Test Certificate or reference number and be able to satisfy the English Language test when you submit the application. Unconfirmed reports that ILR application forms will be accepted without these should be viewed with caution until and if the Home Office provides written confirmation.

If you are not able to take your Life in the UK Test or English Language test because the centres are all closed, you may need to submit an extension application of your current visa type. If this has not been processed by the time you obtain your Life in the UK Test or English Language results, you will then be able to submit your ILR application as a variation of the first application.

The Home Office may provide further guidance on these issues.

25   I have a UK visa but I am stuck outside of the UK due to Covid-19, will these excess absences affect my eligibility for Indefinite Leave to Remain in the future?

The Home Office has not published any specific guidance in relation to excess absences from the UK for the purposes of a future ILR or British Citizenship application.

However, existing provisions enable the Home Office to apply discretion where excess absences are caused by serious and compelling circumstances. This is known to be a high threshold to satisfy and so full documentary evidence of the inability to return to the UK as a result of Covid-19 should be retained.

26   Is my new landlord still required to conduct a Right to Rent check?

Yes, and temporary measures have been introduced by the Home Office to ensure landlords and tenants maintain social distancing. As of 30 March 2020, the following temporary changes have been made:

  • checks can now be carried out over video calls
  • tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • landlords should use the Landlord’s Checking Service if a prospective or existing tenant cannot provide any of the existing documents
  • Landlords should continue to be mindful to not discriminate against anyone as a result of being unable to evidence their right to rent in the UK, particularly in the current circumstances which brings additional complications to migrants having the necessary documentation.

The Government’s announcement can be found here: https://www.gov.uk/guidance/coronavirus-covid-19-landlord-right-to-rent-checks

27   If my employer furloughs me, is this permitted with my visa?

Ordinarily, most UK visa holders are not permitted access to public funds until they have reached settlement or obtained Indefinite Leave to Remain. Aside from the specific Tier 2 considerations discussed above, furlough funds are not currently considered public funds in the Immigration Rules. The Home Office has repeatedly confirmed that migrants are entitled to furlough funds.

28   My British Citizenship application was recently approved and I book my Citizenship Ceremony within 21 days of the letter – what happens in the current circumstances?

Most Councils will have stopped holding Citizenship Ceremonies. However, you need to book the Ceremony – not attend it – within the 21 days. If you are unable to reach the Council to book the appointment, we recommend that initial contact is made in writing and a record retained.

We are expecting an update from the Home Office in due course on any extension in this period.

29   I am unable to register with the police within 7 days of receiving my BRP – are there any concessions that may apply here?

We have received confirmation that registration services are currently suspended. If you have an appointment you should have received a notification by email. There will be no penalty action taken against anyone who is unable to attend an appointment or book a new appointment.

Applications from outside of the UK

30   Can I still submit a UK visa application?

Yes, online application forms are still being accepted. However, most biometrics enrolment locations around the world are currently closed and so you may not be able to attend a biometrics appointment. This means your application will not start to be processed until you have attended the biometrics appointment and sent off your paperwork afterwards.

I have submitted a visa application from outside of the UK, but have not attended an appointment due to closures – is my application cancelled?

No. If the application form has been submitted and the application fee paid, you should be able to book an appointment when the appointment centres reopen.

31   I attended a biometrics appointment but have not received my documents back – what is happening with my application?

At present, the Home Office has not confirmed whether caseworking is continuing in all locations or for all application types although indications suggest it is ongoing. There have also been complications where travel restrictions or border closures apply, which has resulted in the inability of documents to be returned or visas to be endorsed.

Where visa vignettes can be endorsed and the applicant has paid for a courier to return their documents, this will continue if permitted in the applicant’s country. For those who have not paid for a courier to return their documents they can contact the VAC to request this service.

The Home Office will prioritise the return of all applicant documents when VACs reopen.

Information can be found via either the TLS Contact or VFS Global websites (depending on country of application):

https://uk.tlscontact.com/

https://www.vfsglobal.co.uk/en

Applicants will need to select their country of application in order to obtain relevant advice for VACs in that country.

32   My 30 day visa was issued but I won’t be able to travel to the UK before it expires – what will happen to my visa or my BRP if I am unable to collect it?

Where a 30 day visa expires before the individual travels to the UK and/or collects their BRP, the normal procedure is that the individual must apply for a Transfer of Conditions from outside of the UK in order to have a new 30 day visa endorsed in their passport.

If an individual applies for a Transfer of Conditions, a new BRP is usually issued. The previous BRP will usually be returned to the Home Office after 60 days of non-collection.

33   We are an Approved Collection Location and receive Biometrics Residence Permits for newly arriving migrants, how can we safely conduct BRP collections?

We have received confirmation from the Home Office that where face to face verification in person is not possible, you may post BRPs (by secure mail) to the migrant, provided you are satisfied that the person has entered the UK and is located within the UK.

If you decide to post/courier BRPs to the client, they must send you a copy of the stamp in their passport or a boarding pass for those using e-gates. These documents must be retained, together with the usual necessary declarations for entry clearance migrants collecting their BRPs in person.

The Home Office have stated that those adopting this approach do so at their own risk and that of the migrant and they will not be liable for any losses incurred though use of such services or the cost of replacing a BRP as a result of such a loss.

EU Settlement Scheme

34   I have submitted my application – how much longer will it take to get a decision?

All application processing is going to take longer than usual as a result of the Covid-19 pandemic. There is no way to expedite this.

35   I cannot use the ID Checking App – where can I get my passport scanned?

All document scanner locations are currently suspended.

If you have a passport with a chip in it, you can still use the App but will need to borrow a device from someone in order to do so. Please ensure you maintain all necessary social distancing and only borrow a device from someone in your household or workplace (if you are working).

36   I am a non-EEA national and need to send my passport by post to the Home Office for verification – can I still do so?

The postal route for submitting identity evidence is currently suspended. All documents already posted will be processed and returned as quickly as possible.

37   I have a query but the EU Settlement Scheme Resolution Centre is not answering the phone?

The phone line is currently suspended but the Resolution Centre is still answering email enquiries. The link for doing so is here: https://eu-settled-status-enquiries.service.gov.uk/start?hof-cookie-check

38   Will I miss the deadline for applying under the EU Settlement Scheme?

The deadline for applications under the Scheme is 30th June 2021.

Other Queries

39   I am a Tier 1 (Entrepreneur) migrant and my business has been disrupted as a result of Covid-19 – are there any changes to the requirement for me to employ two full time members of staff for 12 consecutive months each?

The Home Office has confirmed that you are able to amalgamate multiple members of staff across different months in order to make up the minimum two members of full-time staff for 12 months. You will not be able to use any time an employee is furloughed towards the 12 month period required.

If it is not possible for you to satisfy this requirement by the time your visa expires, you will be allowed to temporarily extend your visa to give you time to meet the requirement.

40   I have another query – who can I contact?

You can contact the Home Office Coronavirus Immigration Help Centre by email or phone:

  • Email: [email protected] Your email must be in English.
  • Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm). Calls are free of charge.

Emails will be replied to within 5 working days. If you’ve emailed the help centre already, please do not contact them by phone.

This Q&A is for guidance only and does not constitute formal legal advice.

If you require legal advice, please get in touch with your normal client service contact at the firm or write to us at [email protected]

 

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