Our immigration specialist Philip Barth, considers how sponsorship licences are affected by the measures being taken in the UK to deal with the coronavirus pandemic.
Sponsor compliance duties were not drafted with the coronavirus emergency in mind. That's way unintended compliance consequences are arising from the workforce reorganisations that Tier 2 sponsor licence holder employers are implementing.
Since the courts have robustly supported enforcement action (such as suspension and revocation of sponsor licence) for failure to strictly observe compliance duties, it is essential that sponsors take these duties seriously and factor them into account when taking actions that impact sponsored migrants.
We accordingly explore the main compliance issues that our clients are raising with us, and the relaxations that UK Visas and Immigration (UKVI) have so far announced.
Absences of sponsored migrants
Usually, sponsors have to submit a report to UKVI via the sponsorship management system (SMS) if a sponsored migrant does not turn up for their first day of work.
They also have to report if a sponsored migrant is absent from work for more than 10 consecutive working days without permission.
UKVI guidance to sponsors acknowledges that some Tier 2 employees may be prevented from attending their employment due to coronavirus illness, the need to serve a period of quarantine or the inability to travel due to travel restrictions.
UKVI accordingly says that
“Sponsors do not need to report student or employee absences related to coronavirus which they have authorised.”
Accordingly, where absences of sponsored workers are due to coronavirus, sponsors should treat them as authorised.
We would strongly recommend however that sponsors keep detailed records showing that the absences were related to coronavirus and demonstrating how e.g. illness, quarantine or travel restrictions.
What about unpaid leave?
The sponsor guidance permits sponsored migrants to take short periods of unpaid leave, but sponsors are required to stop sponsoring workers who are absent from work without pay for 4 weeks or more in total in any calendar year. There are exceptions to this e.g. for parental leave and sick leave.
The guidance from UKVI for employers who want to have the option of putting its employees on unpaid leave of more than 4 weeks is unfortunately not as unequivocal as it is for authorised absences.
It says that:
“Sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when…an employee is absent from work without pay for four weeks or more.”
“Decisions on whether to … terminate an employment are for sponsors to make. The Home Office recognises the current situation is exceptional and will not take any compliance action against … employees who are unable to work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor … employees despite absences for this reason.”
Instead of giving a blanket exemption for sponsors to allow them to authorise unpaid leave of more than 4 weeks, the liability for deciding whether there are exceptional circumstances rests on the sponsor. That said, some comfort can be taken from the guidance quoted above, where UKVI say that they will not take any compliance action against employees or against sponsors for actions which relate to the coronavirus outbreak.
Again we strongly recommend that detailed records are kept of how the absences were coronavirus outbreak related. In the meantime we are advising sponsors not to withdraw sponsorship of those employees who it has put on unpaid leave for more than four weeks wholly or partly as a direct result of the pandemic, and keep alert to any further guidance from UKVI.
If you are unsure about the lawfulness of salary reduction or putting employee on unpaid leave, please do contact us for clarification.
Reduced hours and pay
The sponsor guidance permits reduction in salary to reflect reduced hours, provided that the reduced salary does not fall below the current appropriate rate requirements for the sponsored role. If the new rate is below the appropriate rate, sponsors cannot continue sponsoring the migrant worker. There is currently no policy relaxation to cover these situations. As with the rules for unpaid leave, there are exceptions to this, e.g. for parental leave and sick leave.
If the migrant was granted leave under Tier 2 (General) as a ‘high earner’ and the reduction in salary takes them below the high earner threshold, the migrant must make a new application for leave.
Working from home
UKVI have recently confirmed that sponsoring employers will not have to report a change of location for all sponsored migrants working from home.
Termination of employment
If for whatever reason you have decided to end the migrant worker’s employment with you, you must report to the UKVI within 10 working days of the termination via the SMS system.
Terminating an employee’s contract of employment may not be as straightforward as it seems as it may give rise to unfair dismissal claims if the termination is not handled properly. Employers are therefore strongly advised to seek legal advice before terminating someone’s employment contract.
In-country switching now permitted for those usually required to apply from overseas
UKVI have just released (24 March 2020) the following update:
“During these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country.
You’ll need to meet the same visa requirements and pay the UK application fee.
This includes those whose leave has already been automatically extended to 31 March 2020.”
So, for example, those on Tier 5 (Youth Mobility Scheme) visas do not now need to leave the UK and apply overseas for a Tier 2 (General) visa, but can apply whilst here in the UK.
Also, leave will be extended to 31 May 2020 for individuals whose leave expires or expired between 24 January 2020 and 31 May 2020 where they cannot leave the UK because of travel restrictions or self-isolation related to Coronavirus. This is however not an automatic grant of extension and a request must be made to the UKVI’s Coronavirus Immigration Team.
Whilst these changes are welcome, they do not address many other situations and we will be watching for any further announcements.
Need more information?
Please contact our immigration team if you need any guidance or advice on your compliance duties or want to understand how UKVI is responding to the challenges of the pandemic for sponsors or current or prospective migrants.
Home Secretary Priti Patel said those who contact the department for a visa extension will be expected to return to their home countries as soon as possible once flight and border restrictions are lifted, but that no immigration enforcement action would be undertaken during this time for those who contact the Home Office.