What do Tier 2 sponsor licence holders need to be aware of during the COVID-19 crisis?
The key message is that sponsor licence holders remain subject to their licence holder duties and should continue to follow compliant processes and systems.
Only where there is specific guidance or exemptions from the Home Office should sponsors deviate from their usual processes, as we detail below.
You should expect in the future to have to rely on and be able to show records from this time, so it will be important to ensure records are kept and maintained relating to the organisation’s sponsored workers throughout this period.
In this guidance, we summarise the latest government advice to help your organisation remain compliant with its sponsor duties.
Furloughing sponsored workers due to temporary reduction or cessation of trading
In an update on 3 April, the Home Office announced sponsors may furlough sponsored workers and temporarily reduce the pay of sponsored employees to the lower of either 80% of their usual salary or £2,500 per month. Such reductions have to form part of a company-wide measure to avoid redundancies which treats all workers the same. Any reduction must be temporary and pay should revert to previous levels once the company policy has been brought to an end.
Sponsoring workers with pending Tier 2/Tier 5 applications
The Home Office has advised employees may start work before their UK visa application has been decided if:
- the sponsor has assigned them a CoS
- the employee submitted their application before their current visa expired
- the role they are employed in is the same as the one on their CoS
Sponsor reporting responsibilities for an employee start from the date they assigned them a CoS, not from the date that their application is granted.
Sponsors will not be able to report information to the Home Office using the Sponsor Management System but must ensure that they record and maintain all the relevant information set out in the sponsor guidance on their own systems.
Any changes that will impact the eventual consideration of the migrant’s visa application should be updated on the CoS, as normal.
If the employee’s application is eventually rejected as invalid or refused their employment must be terminated.
CoS issued, visa application not yet submitted
If you have issued a Certificate of Sponsorship but the worker has not yet applied for their visa, the Home Office has advised the individual can still make their application. Where the start date has changed due to the crisis, for example because the worker was not able to travel due to current restrictions, UKVI will consider applications on a “case by case basis” and may still accept the invalid CoS.
Temporary Tier 2 compliance changes
The Home Office has advised that sponsor reporting duties have been relaxed in relation to Tier 2 visa absences and sponsored workers working from home.
Reporting sponsored worker absences
Under ordinary circumstances, sponsors have to notify the Home Office if a sponsored worker fails to report for their first day of work or if they are absent from work for more than ten consecutive days.
Under the coronavirus exemption, sponsors are not required to report absences of Tier 2 or Tier 5 sponsored workers where these relate to COVID-19.
Absences from work due to coronavirus are to be treated as authorised.
The Home Office has also advised that enforcement action will not be taken against sponsored workers who have been absent as a result of the coronavirus outbreak.
As with all personnel absence, sponsors should continue to retain records relating to their sponsored workers’ absence, whether in relation to being sick, unable to travel or if their place of work has closed.
Reporting change in working location – from home
While sponsors usually have to report a change of working location for their sponsored workers, the Home Office has confirmed that where sponsored workers have to work from home due to the coronavirus crisis, their sponsors do not have to update the Home Office. Again, sponsors should maintain a record and ensure they have their workers’ up to date contact details.
Reducing sponsored workers’ pay and hours
Sponsors continue to be able to reduce sponsored workers’ pay and/or working hours provided they do not breach the relevant Tier 2 visa threshold.
Unpaid leave
Usually, a sponsor has to withdraw sponsorship if the worker takes more than four weeks’ off in a year on an unpaid basis.
However, given the Home Office advice that no enforcement action will be taken against sponsors if they authorise absences during the crisis, it may be advisable for employers not to withdraw if the absences relate to the coronavirus outbreak. Take advice on your circumstances if you are uncertain.
UK visa extensions
Individuals in the UK with a visa nearing its expiry, and who are able to extend their visa or switch into a different category, can still submit their applications online, although they will not be able to attend biometrics appointment.
Those who are not able to extend their visa in-country will need to rely on new emergency provisions by applying to have their visas extended until 31 May 2020. The rule applies for leave expiring between 24 January 2020 and 31 May 2020 where the visa holder is unable to return home due to coronavirus travel restrictions or self-isolation. Visa holders will need to inform the Home Office coronavirus immigration team to update their records.
Those whose visas are extended under the temporary provisions will be expected to leave the UK as soon as possible once travel and border restrictions are lifted.
In-country switching
Individuals who would ordinarily have to leave the UK to switch into a long term visa category can until 31 May 2020 apply from within the UK.
Need assistance?
While there may be some relief for sponsors resulting from certain relaxed duties, immigration compliance should remain a concern for sponsor licence holders during the crisis. The ability to rely on contemporaneous records after the crisis will be critical for continued compliance.
When considering business continuity and workforce planning, it also prudent to plan ahead in respect of visa applications for travel to the UK when this becomes possible.
We are, for example, also advising clients on how to hire and onboard workers to start working remotely overseas, as well as use of compliant right to work checks on a remote basis.
If you are concerned about the immigration risks relating to the coronavirus and mitigating its impact on your workforce and business, we can help. Our team of immigration specialists can support with advice on specific issues and developing a strategy to manage the ongoing risk as the virus persists. Speak to our experts today.
Coronavirus immigration & Tier 2 sponsor FAQs
My employee’s visa is due to expire in the UK. Will it be temporarily extended?
UK visas will be extended until 30 May 2020. The visa holder will need to apply to the Home Office for your records to be updated.
Can a Tier 2 migrant work from home?
Yes, and their sponsor will not be required to report the change of working location to the Home Office.
Do you have to leave the UK to apply for a Tier 2 visa?
Under an emergency measure, visa holders can remain in the UK and make an in-country application to switch to a longer-term visa category such as the Tier 2 General Visa.
Last updated: 15 April 2020<
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
