The Home Office has issued and implemented temporary immigration measures to help migrants and businesses navigate through the COVID-19 crisis in the U.K. The various impacts of COVID-19 on the migrant workforce are presenting many legal and logistical challenges for businesses and their employees.
Here are the responses we have prepared for questions frequently asked by business stakeholders and migrant employees. The information below covers only immigration compliance matters. If you would like guidance in relation to other aspects such as social security, tax, or employment, please visit this link. For guidance in relation to Right to Work matters please refer to our ‘Right to Work FAQ’ via the following link.
If the employees are currently in the UK on long-term visas
The Home Office has recognised that these are unprecedented times and has therefore provided a blanket extension to visa nationals whose visas have or are due to expire between 24 January 2020 and 31 May 2020. This blanket extension is automatic but subject to the visa national being unable to leave the UK due to travel restrictions or being in self-isolation related to COVID-19. Individuals who find themselves in this situation will not be considered as ‘overstayers’ during this period and this will not negatively impact their immigration status or future immigration applications.
Individuals working for the NHS (such as doctors, nurses or paramedics) and their family members will have their visas automatically extended by one year if it is due to expire before 1 October 2020.
The extension will be free and the Immigration Health Surcharge (IHS) will not need to be paid. The NHS staff will not need to apply as the Home Office will contact NHS employers to identify staff eligible for this extension.
If individuals are intending to apply to extend their stay in the UK before 31 May 2020 they should continue to do so.
Individuals must contact the Coronavirus Immigration Team (CIT) to confirm that their visa has expired or will be expiring in order to be granted the concession by completing the online form.
If individuals have immigration queries related to COVID-19 they can contact the Coronavirus Immigration Help Centre via email at CIH@homeoffice.gov.uk. Alternatively, individuals can call the Coronavirus Immigration Help Centre on 0800 678 1767 (Monday to Friday, 9am to 5pm), calls are free of charge.
If the employees are currently in the UK and need to apply for long-term visas
The Home Office is enabling individuals to apply from the UK to switch to a ‘long-term’ UK visa up until the 31 May 2020. This is only applicable for visa holders whose leave expires between 24 January 2020 and 31 May 2020. It includes applications where individuals would usually need to apply for a UK visa from a country of their nationality or legal residence.
The Home Office has specified that individuals will need to meet the same UK visa requirements and eligibility criteria for the respective applications. Individuals will need to pay the UK application fee. They will be able to apply online and the terms of their leave will remain the same until a decision has been made on their application.
If the employees are currently outside the UK
The Home Office is yet to clarify if the above guidance is applicable to individuals currently abroad who hold UK visas that are due to expire soon.
All UK Visa and Citizenship Application Centres (UKVCAS), Post Office enrolment services and Service and Support Centres (SSCs) are currently temporarily closed. New appointments cannot be booked.
If individuals have upcoming biometric enrolment appointments, UKVCAS will automatically reschedule the appointments for approx. 6 weeks down the line. The applications will be on hold until such time that the biometrics can be enrolled.
The immigration status of employees will not be negatively affected as a result of not being able to attend their appointments and to enrol their biometrics.
Working from home in the UK
The Home Office is aware that many Tier 2 workers are working from home due to COVID-19. Due to these exceptional circumstances, sponsors are not required to report this to the Home Office, provided working from home is directly related to and a consequence of COVID-19.
However, we would advise that if you have a small Tier 2 population you still undertake the SMS notifications for future reference where possible. This will leave a clear audit trail of the circumstances.
Please note that you must continue to adhere to all other sponsor reporting duties.
Working from home outside the UK
The Home Office has not issued an exemption to reporting working from overseas. Therefore, where sponsors have Tier 2 workers who have temporarily left the UK to work from overseas this should be reported on the SMS in the usual way via a change of location notification.
Please note that you must continue to adhere to all other sponsor reporting duties.
Currently, most UK visa application centres across the world are closed or are offering limited services due to the COVID-19 outbreak. UK Visas and Immigration (UKVI) commercial partners VFS and TLSContact are periodically updating their respective application centres’ availability in the country in which they are based.
We recommend, where possible, online application forms and Certificates of Sponsorship (“CoS”) are paused until clarity is provided and the situation settles. However, each case should be assessed separately.
As the situation is impacting countries globally it is difficult to determine when restrictions (on travel and application centre closures) will be relaxed, as each country focusses on the health of its residents.
When restrictions are lifted enabling UK visa application centres to re-open, we recommend that employers and sponsors take into consideration the following prior to proceeding with submitting applications and booking travel to the UK:
- Individual applicants’ health (especially if travelling with family members and young children);
- Wider international travel restrictions impacting people, goods and services; and
- The potential of a UK border closure.
We also recommend that travel advice is sought from both the country of application and the UK government website.
For sponsors who have already issued a CoS and the sponsored employee has not yet applied for a visa, the Home Office have confirmed that:
- The employee will still be able to apply for a visa (though the above needs to be taken into consideration).
- Where the start date employment stated on the CoS may have changed, they will not automatically refuse such cases. For example, they may accept a CoS if they have become invalid because the employee was unable to travel as a result of the COVID-19 pandemic.
- However it’s important to note that the Home Office will consider this on a case by case basis.
Meeting work start dates (as per the date on Certificates of Sponsorship)
The Home Office recognises the current situation is exceptional and will not take any enforcement action against sponsors who continue to sponsor employees despite absences due to COVID-19. Therefore, at present the delay to the start date should not cause an issue from a compliance and reporting perspective as long as the delays are due to COVID-19.
We recommend that sponsors submit SMS reports when an applicant is unable to meet their Certificate of Sponsorship start date due to logistical reasons related to COVID-19. We also recommend that an additional report is submitted when the individual is able to enter and start working in the UK. For Tier 2 (General) workers, the UK work start date can be postponed for longer than the usual 28 days. This will not negatively impact the worker or sponsor.
In situations where the sponsor or individual have decided to stop pursuing the role in the UK, the sponsor should report this on the SMS accordingly.
The Home Office has issued guidance confirming that sponsors do not need to report other employee absences related to COVID-19. This can include illness, their need to isolate or inability to travel due to travel restrictions.
Further, if an employee is absent from work on unpaid leave for more 4 weeks due to COVID-19, sponsorship will not need to be withdrawn.
The Home Office are keeping this under review and this will be subject to change at their discretion.
Entry clearance replacement vignettes
If an individual cannot travel to the UK within the validity dates issued on their 30 day entry clearance vignette, they can request a replacement entry clearance vignette with revised validity dates free of charge until the end of this year.
To make a request, individuals must contact the Coronavirus Immigration Help Centre. They will need to include their name, nationality, date of birth and their GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line.
Once submitted, individuals will be contacted when the Visa Application Centres reopen to arrange for a replacement entry clearance vignette to be endorsed in their passport.
In addition, individuals will not be penalised for being unable collect their BRP while coronavirus measures are in place.
This process will be in place until the end of 2020.
The Home Office has not yet published guidance in relation to ILR applications and COVID-19 related absences out of the UK. We expect, however, that a concession may be made.
We suggest that individuals who are intending to apply for ILR at a later date and are currently outside of the UK keep copies of documentation such as:
- Letters from local authorities (in relation to COVID-19 and travel restrictions);
- Evidence of disruption to travel arrangements (cancelled flight itineraries),
- Documentation from hospital/healthcare providers (i.e. medical certificates if applicable)
- Correspondence/letters from the Government/country of jurisdiction that evidences restrictions on travel due to COVID-19
Please note that the above list is not exhaustive. Exceptions to the number of absences in relation to ILR due to COVID-19 may be granted in future guidance. Currently, we expect the Home Office to assess them on a case by case basis once an application is submitted.
The Home Office is happy to accept electronically signed submission sheets and copies of supporting documents via e-mail provided the documents meet the requirements outlined in the published guidance. If the Home Office requires any further information/clarification, they will contact sponsors or their legal representatives.
The Home Office has confirmed that sponsors can temporarily reduce the pay of their sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.
Therefore, if the reduction to salary is as a result of a reduction to working hours, the following requirements must be met:
- Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same.
- These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.
If there are changes to working hours and salary as per the above, the usual reporting requirements must be completed via the sponsor management system.
If your business is planning to redeploy a Tier 2 visa holder to work in a different area of your business the following should be taken into consideration before doing so:
- The Standard Occupational Classification (SOC) code of the proposed new job role and whether this remains within the current SOC code SOC code of the Tier 2 visa holder’s Certificate of Sponsorship
- The salary level offered in the re-deployed role
- The duration of the redeployment – whether it can be a permanent move or a short term transfer
- Working hours
- Work location
In the event that the proposed new role’s SOC code is different to the current SOC code of the Tier 2 visa holder, a new Tier 2 application made within the UK will be required. For Tier 2 (General) visa holders, a Resident Labour Market Test (RLMT) will also need to be conducted (unless one of the usual exemptions apply, for example if the new role has a gross annual salary of at least £159,600). In light of the current temporary closure of UK visa application centres, pursuing this route could delay the speed of the redeployment.
If the SOC code will remain unchanged, redeploying Tier 2 visa holders to another area of the business should be permitted. A report will need to be made to the Home Office on the Sponsor Management System (SMS) in line with the required reporting duties.
Migrant workers subject to immigration control cannot usually have recourse to public funds. However, the Home Office has confirmed that JRS is open to employers with sponsored migrants who meet the eligibility requirements.
Therefore, sponsors can temporarily reduce the pay of their sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.
It is important to note that any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same.
These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.
The Home Office has not yet commented on the reporting requirements in connection to furloughed migrants and therefore, until further guidance is released by the Home Office, we recommend sponsors should submit a sponsor management system notification in such circumstances. Sponsors should also consider providing full details if the migrant’s salary levels decrease to that stated on their Certificate of Sponsorship.
Please note that this information is subject to change in line with Home Office guidance which is frequently updated.
For additional information or assistance, please contact your local Immigration, Legal Service Team* or one of the following professionals with the KPMG International member firm in the United Kingdom.
The KPMG Legal Services – Immigration Team has a wealth of experience in transactional, advisory, and compliance assurance services. We will be able to advise your business in relation to practical considerations in light of the above changes, as well as what this means for your long-term recruitment and compliance strategies.
KPMG LLP is a multi-disciplinary practice authorised and regulated by the Solicitors Regulation Authority (SRA number: 615423).