Our business immigration team provides answers to some of the trickier questions they've been asked by employers.
1. Can we still apply for a sponsorship licence during the “lockdown”?
Yes. The sponsor licence application is an online application which is submitted through the Home Office website, so can still be submitted during lockdown. However, this online application should not be submitted until the sponsor is satisfied that they have all the relevant documents required to support the application. All the supporting documents,together with the signed and dated Submission Sheet,must be sent by post to the Home Office within 5 working days of the online application being submitted.
2. The Home Office guidance states that we need to submit original documents which are currently in our office. We have electronic versions of the required documents, will this suffice?
In light of Covid-19 the Home Office is accepting electronic copies of documents during lockdown. However, they are reserving the right to request the original document(s).
3. Is it possible to put migrant workers on furlough leave?
Yes. The Home Office has stipulated that the Coronavirus Job Retention Scheme can be used for migrants. However they have to meet the same eligibility requirements as other employees, for example they must be on the employer PAYE payroll from 19 March 2020. It may be that some Tier 2 (Intra Company Transfer) migrants will not be able to qualify as they are not on PAYE.
4. If we have furloughed a migrant employee do we need to report the change in their salary on the Sponsor Management System (“SMS”)?
Yes, if you have furloughed a migrant employee, their pay will be reduced to 80% of their salary or £2,500 per month, whichever is lower. The change in the salary must be reported within 10 working days of the migrant’s furlough date.
Once the furlough scheme ends the salary of the furloughed migrant must return to at least the pre-furlough level and the sponsor must also submit another report to the Home Office via the SMS within 10 working days of the migrant employee returning to work.
5. We offered a position to a migrant whilst they were living outside the UK. The migrant entered the UK as a visitor to look for accommodation and is now stranded in the UK because of the lockdown and their visitor visa is due to expire before 31st May 2020. Can the migrant apply for a Tier 2 (General) visa whilst in the UK and holding a valid visitor visa?
Yes, the migrant can apply to switch into the Tier 2 (General) category whilst in the UK as a visitor. This is not normally possible, but due to Covid-19 the Home Office is considering cases on an exceptional basis and will allow the applicants to switch to a long-term visa in the UK if their visa expires between 24 January 2020 and 31 May 2020.
6. How can we meet the Home Offices' Right to Work Checks during Covid-19 when a non-EU employee receives their Tier 2 (General) extension approval and Biometric Card during lock-down?
Prior to Covid-19, on receipt of their Biometric Card, the Employee would provide the original Biometric Card to their employer, who would check the document in their presence, make and retain a clear copy of the document, and record the date and the person who made the check.
As of 30 March 2020 and until further notice, the Home Office has issued ‘Temporary Covid-19 – Right to Work Check guidance'. Where an employer is not able to physically see the Employee’s original Biometric Card, they will not be breaching their Right to Work Check requirements or be subject to civil penalties of up to £20,000, as long as the following interim checks have been carried out and documented correctly:
- The Employee should send a scanned copy of the front and back of their Biometric Card to the employer,
- The employer should arrange a video call with the Employee, and the Employee should show their Biometric Card to the camera. The employer should check the details against the scanned digital copy and verify the Employee’s physical appearance against the photograph on the Biometric Card.
- The employer must record the date this check was made and mark it accordingly as “adjusted check undertaken on [insert date] due to COVID-19”. The person who conducted the check must print their name, sign and date each page of the Biometric Card scan.
- During the video call, the employer can also use the online right to work checking service and complete the online form. Please note the Employee must give the employer permission to view their details, and we recommend obtaining written confirmation of consent.
- In the event the Employee cannot provide any of the required documents via the methods mentioned above, Employees with a valid Biometric Card or who hold EU Settlement Scheme Status can still use the online right to work checking service during a video call with the Employer. Please note again the Employee must give the employer permission to view their details, and we recommend obtaining written confirmation of consent.
Be aware that the Home Office has stated they will inform users (via its website) when the Temporary Covid 19 Right to Works Checks will end. After that date, the employer must see and take a copy of the Employee’s original Biometric Card. On this copy they must record the following check:
“The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19 and this is the follow up check which has been carried out within 8 weeks of the Covid-19 measures ending.”
The person who conducts this check must print their name, sign and date each page of the copied Biometric Card.
This retrospective check must be carried out within 8 weeks of the COVID-19 measures ending. Both checks must be kept for your records.
The Home Office’s online Employer Checking Service should be used if a prospective or current employee cannot or will not provide any of the required documents via the methods mentioned above.
The above steps should also be followed if an employer has recruited an Employee during Covid -19.
7. Can a migrant who is in the UK, and who has a pending Tier 2 (General) application to commence employment with a new UK employer, begin working for this new employer without receiving approval from the Home Office?
Normally a migrant who commences “new” employment must receive Home Office approval before they begin their employment. Due to Covid-19 the Home Office has introduced a concession whereby migrants can commence employment with their “new” employer without receiving prior approval. However, this concession is only applicable if the following criteria are met:
- The migrant has been assigned a Certificate of Sponsorship (“CoS”); and
- their application was submitted before their current visa expired and evidence to support this can be provided to the “new sponsor”; and
- the employment they commence is the same as the one listed on the migrant’s CoS.
Please note: If the migrant’s application is refused or classed as invalid, the “new” sponsor will need to stop sponsoring them immediately and terminate their employment.
The employer’s sponsorship duties commence on the date the CoS is assigned, not the date the visa is granted.
The SMS will not allow for reporting these specific circumstances. The Home Office has stated that sponsors must keep and record all relevant information within their own systems.
8. We currently employ a Tier 4 (General) migrant who is permitted to work 20 hours a week during term time. During “lockdown” is she permitted to work for us full time?
The current Home Office Covid-19 concessions for Tier 4 Students, (valid as of 17 April 2020), states that:
“Tier 4 students with work rights whose sponsors have suspended all study as a result of Covid – 19 outbreak will be considered to be in vacation time and so will be permitted to work full time during the concessionary period.”
Therefore, if the migrant is able to obtain written confirmation that they have “suspended all study as a result of Covid–19” from their university then the migrant student will be able to work full time during the concessionary period, which currently does not have an end date. This written confirmation must be on the university’s headed paper.
Under the concession policy, Tier 4 students who have work rights and are employed by an NHS trust as a doctor, nurse or paramedic will not be restricted to 20 hrs per week during term time and may work without limit on the number of hours permitted.
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