Guide to immigration implications of COVID-19 for employers

Introduction
Key points from latest guidance
Visa processing issues
Visa holders with imminent expiry dates
Moving immigration category
Tier 2 cooling-off period
Indefinite leave to remain
Tier 2 sponsor licence holders
Implications for EEA and Swiss nationals
Right to work checks
Further information

Introduction

This article sets out the main immigration law issues and Home Office guidance of which employers need to be aware so that they can consider the implications of the COVID-19 pandemic for their business. The Home Office is issuing revised guidance generally on a weekly basis; this article has been updated as of 30 April 2020.(1)

This article summarises the latest updates and provides further details on issues ranging from logistical considerations to Tier 2 and prevention of illegal working requirements.

Key points from latest guidance

On 29 April 2020 the home secretary made an announcement significantly expanding the scope of the automatic one-year visa extension provisions to cover frontline health and social care workers working both for the National Health Service (NHS) and in the independent sector. The provisions cover individuals whose visa expires between 31 March 2020 and 30 September 2020. The statement also confirms that the family members of frontline workers who die from COVID-19 will be offered immediate indefinite leave to remain.

On 28 April 2020 the Home Office issued revised information for applicants on GOV.UK. The latest version of the guidance confirms that individuals whose 30-day temporary visa vignette has expired or is about to expire can email the Coronavirus Immigration Help Centre to request a replacement, free of charge, until the end of 2020. They will be contacted to arrange endorsement of a new vignette with revised validity dates once Visa Application Centres (VACs) have re-opened.

The guidance also confirms that individuals will not be penalised for being unable to collect their biometric residence permits (BRPs) while COVID-19 measures are in place.

Visa processing issues

The issues relating to UK visa processing are complex and rapidly changing, particularly as many VACs and all in-country processing centres are currently closed. Advice should be sought on whether to submit or defer making an application on a case-by-case basis, particularly for applicants in the United Kingdom or who have departed the United Kingdom to make a further application from abroad while seeking to preserve the continuity of their leave for indefinite leave to remain purposes.

Applying from abroad
The Home Office works with two commercial providers, VFS Global and TLScontact, which operate the VACs abroad. In most cases, it is currently not possible to attend a VAC to provide biometrics and upload supporting documents for UK visa applications.

The latest advice from VFS Global can be checked here.

Status information on TLScontact VACs can be checked on the address page of the relevant preferred appointment location.

Applicants with appointments already booked at VACs that are closed will be contacted by the commercial partner directly.

Due to border restrictions in some countries, commercial partners are also experiencing problems with being able to print and send UK visa vignettes and return passports to applicants. Where possible, passports are being returned where the applicant has paid for courier return. Any concerns about this should be sent to the Home Office's Coronavirus Immigration Team at CIH@homeoffice.gov.uk. Those who have not arranged for courier return should contact the commercial partner to make arrangements on a case-by-case basis, noting that commercial partners must comply with any local movement-related restrictions.

If an applicant has already been granted their visa but they are unable to travel during the 30-day window of their temporary entry clearance vignette, they may need to obtain a new vignette before they travel.

On 28 April 2020 the Home Office published guidance confirming that a person whose temporary 30-day vignette has expired or is about to expire can request a free replacement visa until the end of 2020.

They must do this by emailing CIH@homeoffice.gov.uk, including 'REPLACEMENT 30 DAY VISA' in the subject line and the vignette holder's name, nationality, date of birth and GWF reference number in the body of the email.

Individuals who use this process will be contacted once VACs re-open to arrange for a replacement visa with revised validity dates to be placed in their passport.

The requirement for a temporary 30-day vignette to be valid at the time of entry to the United Kingdom may be waived for non-visas nationals (countries that do not appear on the visa national list), especially where their BRP has already been issued and evidence of this can be provided on entry to the United Kingdom.

Any applicant intending to leave the United Kingdom in order to submit a new visa application from abroad should consider the Home Office's latest published guidance, which confirms that:

• anyone currently in the United Kingdom with leave expiring between 24 January 2020 and 31 May 2020 should submit an online form to the Home Office to request an extension of stay to 31 May 2020 if they were not previously planning to stay in the United Kingdom but cannot leave the United Kingdom because of travel restrictions or self-isolation; and
• applicants with a visa expiry date between 24 January 2020 and 31 May 2020 are exceptionally authorised to submit their long-term visa applications within the United Kingdom where they would normally be required to submit these from abroad. Applications made under this arrangement must be submitted by 31 May 2020. Applicants should also ensure that they remain up to date on any local restrictions which may affect the submission of their application and contact the VAC to reschedule a booked appointment as appropriate. For example, where VACs remain open, applicants must take into account and clear any applicable self-isolation period before they attend the appointment.

On 2 April 2020 the Home Office confirmed that applications can be made for certain short-term visas via any visa application centre, British diplomatic mission or overseas consular post where entry clearance applications are accepted. This concession allows applications by, for example, individuals who are temporary visitors in a country and cannot return to their home country to submit the application due to travel restrictions. All other requirements of the application must be satisfied in the usual way. The eligible visa categories are limited to:

• visitor visas;
• Tier 5 (Youth Mobility Scheme/Creative and Sporting);
• EEA Family Permits;
• short-term study visas; and
• Global Talent entry clearance visas.

Applications in all other visa categories must be submitted in the country of nationality or legal residence.

In exceptional circumstances, it is possible to request a visa waiver in order to enter the United Kingdom as a visitor. Requests can be submitted by email to CIH@homeoffice.gov.uk setting out the urgent, compelling or compassionate reasons. Each request will be considered on case-by-case basis, but this option may prove particularly helpful for those with a pressing business need to come to the United Kingdom, or for family members of British nationals and settled persons.

Applying from within the United Kingdom
Sopra Steria, the Home Office's commercial partner that manages in-country biometric appointments, has announced the temporary suspension of all UKVCAS services from close of business on 27 March 2020 until further notice.

Applicants with existing appointments will automatically receive a cancellation email, which instructs them to log in to their UKVCAS account 24 hours later to view the rescheduled appointment date and time. Rescheduled appointments are guaranteed to take place at the same centre on a date within six weeks of the original appointment date, so long as the COVID-19 measures have been lifted by this point. Sopra Steria confirms that this will have no impact on submitted applications as it will notify the Home Office directly of the delayed appointment.

New applicants who have submitted online application forms and need to book an appointment are advised to register an account with UKVCAS. The prompt will appear after payment of the government application fee. The Home Office is currently advising applicants not to select the priority or super priority processing options as these are not currently available. Applicants should check for updates on booking availability once their application has been submitted.

UK Visas and Immigration's (UKVI's) Service and Support Centres are also closed. Applicants with existing bookings will be contacted by the UKVI to cancel their appointments and re-book once service resumes.

The Post Office has made no announcement regarding suspending the processing of biometric enrolments; however, applicants should observe social distancing measures while these remain in force. Once these have been lifted, it is advisable to contact the relevant branch before attending.

The Home Office confirmed on 28 April 2020 that individuals will not be penalised for being unable to collect their BRP while COVID-19 measures are in place.

Disruption to services associated with making UK immigration applications
With limited exceptions mentioned elsewhere in this article, applicants must still satisfy the requirements of the relevant immigration category in the usual way. This may mean obtaining assessment of an overseas degree, passing a valid UKVI-approved English language test or passing the Life in the UK test.

There is also disruption to registration processes for those who are required to register with the police.

Assessment of overseas degrees
UK NARIC is continuing to conduct qualification assessments of overseas degrees and fast-tracked turnaround is still possible. However, statements are being issued electronically in PDF format and applicants receive no hard copy statement from UK NARIC until further notice. The PDF statements issued will be temporary documents designed specifically for the current period of COVID-19 restrictions. Once the restrictions are relaxed, UK NARIC will issue the official printed paper version of the statements by post. The Home Office will be aware of this change in process from UK NARIC and will have means to verify the authenticity of the temporary statements via www.naric.org.uk/verification. The documents required for an assessment to be conducted remain the same. This includes a valid medium of instruction letter from the relevant educational institution where it is unclear from the degree certificate or transcript that the course was taught in English.

UKVI-approved English language tests
The British Council, which is an approved provider of the IELTS for the UKVI and Life Skills tests required for a number of visa categories in the United Kingdom and overseas, has temporarily paused tests in many countries, including the United Kingdom, in response to government and health authority guidance. To check if a particular country or test centre is affected, applicants can refer to the COVID-19 guidance on the IELTS website.

Trinity College London, which is an approved provider of the GESE and ISE exams in the United Kingdom only, have suspended all tests. Updates can be viewed on the Trinity College London website.

In the case of both test providers, applicants should be prepared for delays in receiving results where tests have already been taken, on account of staff shortages and office closures.

Life in the UK tests
Life in the UK test centres, relevant to applicants for Indefinite Leave to Remain and Naturalisation, are closed in line with government requirements from 21 March 2020 until 13 April 2020. Any tests booked during this period will be automatically rescheduled to another date after 30 April 2020. New test dates are available to book from 13 April 2020 onwards. Updates can be found on the LIUK website.

Police registration certificates
Police registration at the Overseas Visitors Records Office (OVRO) is currently suspended. Anyone with a pre-booked appointment will be contacted directly to reschedule the appointment. Action will not be taken against individuals who are unable to attend the OVRO or book an appointment in order to either register their stay in the United Kingdom or update existing certificates. Updates can be monitored on the OVRO website. Those who live outside the London metropolitan area covered by OVRO should contact their local police force for guidance.

Visa holders with imminent expiry dates

The travel restrictions that have been imposed by the United Kingdom and other countries may result in visa holders being unable to leave the United Kingdom before their visa expires. The Home Office has acknowledged that due to these restrictions and circumstances outside of their control, individuals will face uncertainty in relation to the expiry date of their visas.

The Home Office has confirmed in their COVID-19 advice for UK visa applicants and temporary UK residents that holders of UK visas with an expiry date between 24 January 2020 and 31 May 2020 can apply to have their stay extended to 31 May 2020 if they were not planning to stay in the United Kingdom but cannot leave the United Kingdom due to travel restrictions or self-isolation as a consequence of COVID-19. This policy covers all nationalities and visa categories.

Unlike the initial arrangements for Chinese nationals with visa expiries between 24 January 2020 and 30 March 2020, whose stay was extended automatically to 31 March 2020, anyone who is intending to leave the United Kingdom but needs their visa to be extended to 31 May 2020 in the meantime must request this using the online form available here. It is advisable for anyone who previously sent an email to the main helpline email address to complete and submit the online form if they have received no reply to their email. Applicants must provide their personal details (ie, name, date of birth, nationality and visa reference number), as well as a note of why they cannot return to their home country. Notably, an extension may be declined if it does not relate to travel restrictions or self-isolation and therefore this process should not be used for people who were intending to extend their leave in-country in any event.

The Home Office anticipates being able to respond to an extension request within five working days of receiving it. Those who need a status letter confirming the extension or a new BRP with the revised expiry date should contact the Coronavirus Immigration Team (CIT) at CIH@homeoffice.gov.uk to request this. In other cases, no further documentation will be issued other than the email from the CIT in response to the extension request.

On 31 March 2020 the government announced that NHS doctors, nurses and paramedics whose visas are due to expire before 1 October 2020 will have their leave to remain extended for one year.

This provision was substantially expanded via an announcement on 29 April 2020. Following the expansion, an automatic one-year visa extension is available to frontline health and social care workers working both for the NHS and in the independent sector whose visas expire between 31 March 2020 and 30 September 2020. No exhaustive list of eligible occupations has been published, but a partial list includes doctors, nurses, paramedics, midwives, radiographers, social workers and pharmacists. The arrangements also cover dependent family members. It is to be hoped that a list will be published as this will give individuals confidence that they are not required to submit an extension application. In particular, clarity is needed on whether care workers in nursing homes are included.

Extensions will be issued automatically and individuals will be exempt from having to pay the government application fee and immigration health surcharge. NHS workers with an outstanding application will be offered a refund.

Eligible applicants will be identified and contacted directly by the Home Office. It is advisable for those who believe that they are within scope of the concession to contact the HR representatives responsible for immigration matters at their employer, as it is anticipated that employers identified by the Department for Health and Social Care will liaise with the Home Office to compile a list of eligible workers.

The 29 April 2020 statement also confirms that the family members of frontline workers who die from COVID-19 will be offered immediate indefinite leave to remain.

Further, since 31 March 2020, there is no limit on the number of hours per week a person can work or volunteer if they work for the NHS as a doctor, nurse or paramedic and are in the United Kingdom as a Tier 4 student, a Tier 2 worker working for the NHS as a second job, a visiting academic or a short-term visa holder who is allowed to volunteer.

Moving immigration category

The Home Office previously announced in their COVID-19 guidance a concession to allow Chinese nationals currently on a Tier 2 (Intra-company Transfer) visa to switch in-country to a Tier 2 (General) visa. Normally such a switch would require a fresh visa application to be made from abroad.

This concession was significantly widened in the guidance from 24 March 2020. Provided the application is submitted by 31 May 2020, anyone with a visa expiry between 24 January 2020 and 31 May 2020 who would normally have had to depart the United Kingdom to submit a long-term visa application from abroad is permitted to submit their application in the United Kingdom instead. The usual UK immigration fees for in-country applications will be charged.

Applicants who are intending to submit their application within the United Kingdom should be aware that they must still satisfy all of the other requirements of the relevant visa category in the usual way and that they may encounter delays in receiving a decision due to factors such as UKVCAS and English-language testing centre closures or UKVI staff shortages. There is currently a lack of clarity about which online form applicants should use, and other issues such as whether applicants will need to complete tuberculosis screening in cases where this would have been required as part of the equivalent entry clearance application. The Home Office is in the process of considering these issues. Applicants with an imminent visa expiry date should seek advice on the appropriate next steps as the best approach will vary on a case-by-case basis.

As announced in an update to the guidance on 14 April 2020, Tier 2 or 5 applicants whose in-country application is pending may start to work in their new role before the application has been decided, if the following requirements are met:

• they have been assigned a Certificate of Sponsorship (CoS) by the sponsor of the new role;
• their application has been submitted online before their current visa expired and this can be evidenced to their sponsor; and
• the job they start is the same as the one listed on the CoS connected to their pending application.

The sponsor must comply with reporting responsibilities from the point at which they assign the CoS, not from the date the application is granted. Relevant changes must be reported on the CoS as usual.

Before the application is decided, sponsors will not normally be able to make reports using the sponsor management system, unless they already sponsor the person in another role. During this time, any information that must normally be reported on the sponsor management system in accordance with the sponsor guidance, such as a change in migrant circumstances, must be recorded and retained on the sponsor's internal systems.

If the person's application is rejected as invalid or is eventually refused by the Home Office, the sponsor must stop sponsoring them and they must stop working for the sponsor.

Tier 2 cooling-off period

Employers should consider carefully the situation for Tier 2 visa holders who are currently stranded abroad, or requests from Tier 2 migrants who might wish to return to their home country or travel to any other country to work remotely. If they are unable to return to the United Kingdom before their visa is due to expire, they may be caught by the cooling-off period which will prevent them returning to the United Kingdom on a Tier 2 visa for 12 months. The cooling-off period does not apply if:

• they are applying for a Tier 2 General visa and their salary is above £159,600;
• they are applying for a Tier 2 Intra Company Transfer visa and their salary is above £120,000; or
• their original certificate of sponsorship was granted for three months or less.

It is hoped that the Home Office will offer some discretion, but this is not confirmed. It is important that this is flagged with employees who could be affected.

Indefinite leave to remain

Tier 2 (General) migrants who want to ultimately apply for indefinite leave to remain in the United Kingdom are subject to a rule on absences in that they cannot exceed 180 days absence from the United Kingdom in any 12-month period. There are some exceptions to this requirement, particularly when absences are due to an exceptional circumstance. It is likely that Tier 2 visa holders who accrue absences abroad as they are unable to travel due to COVID-19 will be able to argue that this amounts to an exceptional circumstance, but the Home Office has not published any formal policy on the issue. Individuals should keep records of flight tickets and other documentation to evidence the absence, which could be submitted at a later stage to support an indefinite leave to remain application.

Tier 2 sponsor licence holders

Businesses holding a Tier 2 sponsor licence have certain reporting and record-keeping duties in relation to sponsored employees. The spread of COVID-19 and the consequential restrictions on travel could have implications for complying with sponsor licence duties. For instance, delays to start dates and changes in work location normally must be reported within 10 working days on the sponsor management system. The economic impact of COVID-19 may also mean that sponsors might have to cut salaries or place employees on unpaid leave, which would be considered as changes in circumstances that need reporting if they relate to Tier 2 workers.(2)

Sponsors should seek advice if they are unsure of whether a course of action that they are considering might impact on the business's sponsor licence duties. Failure to do so is serious as it can jeopardise the licence and the immigration status of sponsored workers.

Some particular issues to bear in mind include the following:

• Sponsors must continue to report changes to their own circumstances as normal, including any changes to their key personnel (eg, where a person leaves the business, where the organisational structure of the business changes or where it ceases trading or becomes insolvent).
• Under the present Home Office guidance, a Tier 2 migrant can delay their start date by only up to 28 days once their visa has been granted. Due to current travel restrictions, a sponsor may have Tier 2 workers who will be unable to enter the United Kingdom to start work so their start date will have to be delayed. Any delay to their start date should be reported on the sponsor management system. If their start date does have to be delayed beyond 28 days, advice should be sought.
• Many Tier 2 workers will now be working from home as offices encourage remote working. A Tier 2 sponsor normally must report a change in work location on the sponsor management system within 10 working days. The Home Office allows Tier 2 workers to work from home but it has confirmed that working from home temporarily in this circumstance is not a change of work address requiring a sponsor management system report. Sponsors should continue to report any other changes, for instance if a sponsored employee is working out of another office abroad or continues to work from home either in the United Kingdom or abroad in circumstances that the sponsor has assessed are no longer related to COVID-19 restrictions. Sponsors should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties.
• Tier 2 sponsors must have a copy of the migrant's passport and visa on file.(3)
• A restricted CoS must be assigned within three months. Once assigned, it must be used within three months. If either of these deadlines is missed, the CoS will become invalid and a new CoS will be required. However, where the CoS expired because the applicant was unable to travel due to the COVID-19 pandemic, it may still be accepted by the Home Office. Employers were previously advised in the COVID-19 guidance of 3 April 2020 to submit details to the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk where decisions will be made on a case-by-case basis. This instruction no longer appears in the current guidance; however, this would continue to be a sensible approach.
• Normally a Tier 2 worker cannot take unpaid leave of four weeks or more per calendar year, according to their normal working pattern; however, the Home Office has published a concession allowing unpaid absences from work due to the COVID-19 outbreak.
• If a sponsor is having to consider cutting salaries and/or reducing working hours, this will have reporting and potentially other implications for Tier 2 workers. The Home Office updated its COVID-19 guidance for Tier 2, 4 and 5 sponsors on 3 April 2020. This latest update confirms that employers may reduce the salary of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower. Any changes must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. This concession applies even where the Standard Occupational Classification code minimum salary is higher than £30,000 (or other applicable general minimum threshold). The reduction is permitted as a temporary measure and, once the furlough arrangement has ended, the salary must return to the previous rate in accordance with the CoS. Sponsor management system reports must be submitted to notify the Home Office of all salary changes.
• Sponsors may have to consider terminating the employment of sponsored workers in light of the economic downturn, which will trigger reporting requirements for the sponsor and have immigration implications for individuals.

Services for sponsors have also been affected. For example, the service for non-premium A-rated sponsors to make eligible priority requests has been suspended from 7 April 2020 until further notice.

Implications for EEA and Swiss nationals

As the United Kingdom has now left the European Union, nationals of the European Economic Area and Switzerland and their family members currently living in the United Kingdom have until the end of June 2021 to register under the EU Settlement Scheme (EUSS) for either pre-settled or settled status. They should continue to apply via the specially designed app available on both iPhone and Android devices. Applications for the EUSS can also be made from abroad.

For an individual to qualify for settled status, normally they must not be absent for more than six months in any 12-month period. There is some discretion for absences up to 12 months for an 'important reason', such as sick leave, or compulsory military service of any length. Therefore, there is good reason to believe that an otherwise eligible individual who is abroad and who cannot return to the United Kingdom will have some discretion applied to them if their time abroad takes them beyond the six-month limit. Legal advice should be sought on this.

The United Kingdom is currently in a transition period which will last until the end of December 2020 when free movement arrangements will come to an end. There is a possibility that the transition period may be extended due to the disruption caused by COVID-19.

Currently, the Home Office is continuing to process EUSS applications, albeit with anticipated delays. New applications can still be submitted using the mobile app or online application form. Applicants who need to complete a paper application form must submit a request for a form to the Home Office and can continue to do so online.

The EU Settlement Resolution Centre has closed its telephone helpline until further notice. However, enquiries can be submitted via email, with the possibility of a call back where necessary.

Any applicants required to present their original ID documents at an ID document scanner location should note that this service has been suspended. The same applies to postal submission of passports directly to the Home Office. Any passports already received by the Home Office will be returned as soon as practicable. New passports should not be submitted until further notice.

Right to work checks

A right to work check will usually involve an employee of an employer meeting with a new starter or existing employee in-person to check their documents. This is impossible while social distancing measures apply. Under the government's existing guidance for right to work checks, supplemented by temporary adjusted guidance published on 30 March 2020, employers must still conduct right to work checks despite temporarily being unable to meet with individuals face-to-face. They have provided leniency around how these are done so that scanned copies can be used instead of originals, but all other requirements must be met and a fresh right to work check conducted once normal working arrangements resume.(4)

Further information

Please see the following UK government webpages for updates:

• GOV.UK - Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents.
• GOV.UK - Coronavirus (COVID-19): advice for Tier 2, 4 and 5 sponsors.
• GOV.UK - Coronavirus (COVID-19): right to work checks.

The Home Office has also set up a special Coronavirus Immigration Help Centre:

• Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm).
• Calls are free of charge.
• Email: CIH@homeoffice.gov.uk.

The Home Office requests that if an email has been sent to the Help Centre, it should not be contacted on the same issue by phone.

For further information on this topic please contact Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar or Stephen O'Flaherty at Lewis Silkin by telephone (+44 20 7074 8000​) or email (andrew.osborne@lewissilkin.com, joanna.hunt@lewissilkin.com, naomi.hanrahan-soar@lewissilkin.com or stephen.o'flaherty@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) This article is being maintained on an ongoing basis here.

(2) Further information on the immigration implications for Tier 2 workers of changes to salary, the government's furlough scheme and redundancy is available here.

(3) Further information on how to conduct right to work checks when employees are unable to attend work in person is available here.

(4) Further information on the options for right to work checks during and after the COVID-19 pandemic is available here.