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Immigration problems affecting employees - the most common questions being asked by employers
The Home Office provided a limited update to its guidance in light of coronavirus on 24 March 2020. Guidance on the broader implications for immigration is expected in the coming weeks.
1. What should I do if my employee’s visa is due to expire soon?
2. As a sponsor, are employers required to report absences from employment due to COVID-19?
3. How can employers comply with their obligations relating to right to work checks in light of COVID-19?
4. What about non-EEA national employees who were due to relocate to the UK?
5. Can an employer delay the start date for a sponsored migrant?
6. Do employers need to notify the Home Office that a sponsored migrant is now working from home?
The Home Office has advised that anyone in the UK whose leave expires between 24 January 2020 and 30 May 2020 will have their permission to stay in the UK extended to 31 May 2020. They must contact the Home Office via a dedicated email address (CIH@homeoffice.go.uk) to be issued with the extension.
Additionally, until 31 May non-EEA nationals on a short-term visa can switch their permission to a long-term visa from within the UK, instead of being required to make the application from their home county. The same visa requirements, other than making the application from their home country will apply.
No, there is no requirement to report. Unpaid leave of four weeks or more is permitted without report or withdrawal of sponsorship.
Generally, absences from the UK over a certain level can negatively affect applications for Indefinite Leave to Remain; we expect the Home Office to disregard absences due to coronavirus, but this has not yet been confirmed. Applicants should carefully maintain records of their absences and the reasons for them as evidence to demonstrate they were unable to return to the UK due to travel restrictions caused by coronavirus.
- How can employers comply with their obligations relating to right to work checks in light of COVID-19?
The Prevention of Illegal Working Regulations require employers to check and copy all employees’ original right to work documents, in their presence, on or before their first day of work.
This can be done in one of two ways:
i) Remote checks
In practical terms this means the onboarding employee would need to send their right to work document to the person carrying out the check (e.g. by courier) and use videocall for the check to be carried out.
ii) Online checks
Where an individual has been issued with a Biometric Resident Permit (BRP) or has been granted status under the EU Settlement Scheme, employers can use an online tool to confirm their right to work in place of checking their original documents. However, this cannot be used for British nationals, any visa holder without a valid BRP or EU nationals without status under the EU Settlement Scheme.
Most overseas UK visa application centres are now closed for applications. Applicants will have to wait until these are reopened to make their applications.
Those who have already applied for entry clearance for more than six months’ permission will have been issued a 30 day entry visa with which they must travel to the UK during its validity to collect a Biometric Residence Permit (which evidences their full grant of leave). Those who are yet to travel on their 30 day may not be able to during its validity due to current travel restrictions. If this is the case, they will be required to apply for a new 30 day visa once application centres reopen.
Start dates cannot be delayed by more than 28 days from the date stated on the migrant’s Certificate of Sponsorship, or date leave was granted (whichever is the later).
Sponsors must normally ensure that any salary or hour reduction does not result in a migrant’s salary falling below applicable minimum salary thresholds. Reductions for high earners which bring them below the £159,600 threshold will normally result in a new application for leave being required.
Notwithstanding the above, the introduction of furlough leave in combination with advice from the Home Office that periods of unpaid leave will not impact sponsorship it would follow that where a migrant is placed on furlough and consequently unable to meet the applicable salary thresholds their sponsorship should not be affected. As of yet, however, the Home Office has not explicitly confirmed this.
No. The Home Office has confirmed that the duty to notify of a change in main work address for a sponsored migrant is waived where migrants are working from home due to current advice on self-isolation and social distancing.
If you have any questions about how COVID-19 is affecting your organisation, you should seek advice. Please contact a member of the team using our website, or speak with your usual Fox Williams contact.