Can an individual start work before the Tier 2 visa is granted? While delayed UK visa processing is causing wide-spread disruption to employers, it may in some cases be possible for Tier 2 visa applicants to start working for their sponsor before their visa is decided.
Guidance published on 9 April now allows for sponsored worker applicants to start work while their Tier 2 visa application is being processed, provided certain conditions are met.
If an individual already in the UK with valid leave has applied for a Tier 2 visa and is waiting for a decision on their application, the individual can start work before their visa application has been decided if:
- They have been assigned a Certificate of Sponsorship (CoS)
- They submitted their Tier 2 visa application before their current visa expired and can show evidence to their sponsor of this
- The job they start is the same as the one listed on their new CoS
If the applicant commences work with the new sponsor, the employer’s reporting duties start from the date of employment, not from the date the application is granted. For example, the work start date will be recorded as a Sponsor Note on the Sponsor Management System.
An application under the Tier 2 Change of Employment category was submitted by the new sponsor. The CoS was assigned on 19 March and the application form was submitted electronically.
The Visa Support Centre (VSC), however, closed before the applicant was able to attend their appointment booked for Saturday 28 March, and the individual is waiting for the biometric enrolment date to be rescheduled.
Under the new provision announced on 9 April, the individual is permitted to start work for their new sponsor before the application has been decided since they have already been assigned a CoS.
If the application is then refused
If the individual’s Tier 2 visa application is eventually refused, the employer will no longer be sponsoring them and the individual must cease working for the sponsor.
Right to Work checks
Employers must continue to meet their responsibilities to conduct Right to Work checks on all new employees, including Tier 2 visa workers.
Employers found to be in breach of their Right to Work duties risk Home Office penalties.
Temporary COVID-19 guidance issued on 30 March 2020 is now in effect to allow employers to continue to perform Right to Work checks and onboard new recruits lawfully and in full compliance with the prevention of illegal working regulations.
Under the temporary measures, ‘adjusted’ Right to Work checks are permitted to be conducted via video call between the employer and the new recruit.
Individuals (and where required existing employees as part of follow up Right to Work checks) should provide electronic copies of their documentation.
If an individual cannot provide an electronic copy of the required documents, the employer should as usual use the Home Office Employer Checking Service.
Where some individuals are not be able, due to the pandemic, to provide evidence and the required documentation to prove their eligibility to work, employers are advised to take advice to avoid unlawfully discriminating such individuals.
How to perform an adjusted Right to Work check
To onboard a new recruit under the emergency measures:
Request a scan or a photograph of the required documents to be sent electronically (ie by email or an app) rather than asking for the originals to be sent by post.
Schedule a video call with the individual. During this call, you should ask them to hold up to the camera the original documents which they have provided in electronic versions. Check these against the digital copies that were sent to you.
If the individual holds a current, valid Biometric Residence Permit or EU Settled Status and the individual has to give you permission to do so, access the Employer Checking Service during the video call.
Make a record of the date you checked the documents and conducted the video call. Mark up the record clearly with the following words: “adjusted check undertaken on [insert date] due to COVID-19”
If the individual is not able to show you the required documents, you should use the Home Office Employer Checking Service. You will be provided a Positive Verification Notice if the individual has valid Right to Work, which has the effect of giving you the benefit of a statutory excuse for 6 months from the date in the notice.
Retrospective Right to Work checks after COVID-19 measures end
The COVID-19 measures are temporary. The Home Office has confirmed it will advise of the date when they will no longer be in force and when standard procedures are to resume, as prescribed in the employers’ Right to Work checks guide.
Employers will be required to conduct corrected, retrospective checks on any employees or applicants that were subject to the adjusted emergency measure checks.
The corrected checks should be marked up as follows: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
The full, retrospective check has to be performed within 8 weeks of the date given by the Home Office when the COVID-19 measures are brought to an end. Employers must retain records of both checks.
Where a complete check was performed during the crisis, there will be no requirement to perform a further retrospective check.
Where the employee is found through the corrected check not to have the Right to Work, the employer must end their employment.
The Home Office has confirmed it will not pursue enforcement action against employers where they have performed the adjusted and retrospective changes as outlined in their guidance.
Guidance affecting immigration compliance continues to change at pace. We also recognise the need for employers to have pragmatic advice to support commercial decision-making while mitigating legal risk and operational disruption.
If you have a question about any aspect of immigration compliance, Tier 2 visa sponsorship or any of the workforce challenges currently facing your organisation, speak to us. As employer solutions lawyers, our experts are on hand to support with your employment, immigration, HR and global mobility needs.
Last updated: 26 April 2020