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24 June 2020
UK visa processing is slowly starting to resume, but it is not yet business as usual. There are still many things that employers and applicants must monitor and potential pitfalls to avoid.
The issues relating to processing remain complex and, as each country is moving out of lockdown at a different pace depending on their local restrictions, each application should be considered on a case-by-case basis. This article focuses on considerations for employers and visa holders as the United Kingdom and other countries begin a gradual transition out of lockdown.
Discretionary extension concession
For many governments, the status of the pandemic and continuing risk to public health means that it is too soon to resume normal service safely. Thus, individuals who are in the United Kingdom on a temporary basis remain unable to return home due to travel restrictions and safety concerns. In light of this, the latest published guidance as updated by the Home Office on 22 May 2020 provides that discretionary extensions may now be granted until 31 July 2020 (an amendment to the previous 31 May 2020 date).
The concession is applicable to visitors and visa holders:
However, the Home Office has confirmed that the extension process may be used before applying for further leave to remain in some cases.
Anyone who already applied for and was granted a discretionary extension until 31 May 2020 will automatically have their leave extended until 31 July 2020 without the need to submit a new request. Those who were not previously eligible to apply (ie, individuals whose visas expire in June 2020 or July 2020) may now complete an online request. As before, the request must include the reason for being unable to depart the United Kingdom, and decisions should be received within approximately five working days. Despite the extension being valid until 31 July 2020, the Home Office expects individuals to depart the United Kingdom as soon as it is safe and possible to do so. Therefore, the status of safety in the destination country and options to depart the United Kingdom should continue to be monitored. There is no indication of a further extension to this concession at this stage.
Leave to remain applications
As outlined above, the discretionary extension concession is not intended for visa holders whose visa is approaching expiry and who intend to continue residing in the United Kingdom (eg, Tier 2 visa holders continuing in sponsored roles). In this circumstance, the appropriate action is to submit a visa extension application in the usual way before the current visa expires.
In the run up to lockdown measures being introduced in the United Kingdom, applicants with confirmed biometric appointments began to be notified of cancellations due to the closure of the UK Visa and Citizenship Application Services (UKVCAS) service points across the country. Once the lockdown was in full force from 30 March 2020, applicants could no longer book an appointment. More recently, applications submitted online could be finalised only by opting for standard processing, with no fast-track services available and no option to book an appointment.
All of these applicants have been left in limbo, with both standard and fast-track applications pending but no sign of when a decision will be forthcoming. Those who have paid for fast-track processing should receive a refund if their application is processed under the standard option.
However, since 1 June 2020 UKVCAS has commenced a phased and controlled reopening of their service points. Appointments are available from 1 June 2020 onwards.
In the first instance, appointments will be offered to applicants who had their original appointments postponed due to the suspension of UKVCAS services. Affected applicants will be contacted directly with an invitation to schedule a new appointment, honouring the appointment fee already paid.
Updates on which centres have reopened can be found on the UKVCAS website. If the appointment options are unsuitable, applicants can wait for their preferred service point to reopen without any adverse impact on their immigration application.
As an exception, healthcare workers requiring an appointment should contact the Coronavirus Immigration Helpline directly to schedule an appointment.
All remaining applicants should complete the UKVCAS account registration after submitting their online visa application so that they can be notified directly at a later date to book their appointment.
Applicants should also ensure that contact details entered on the application form are accurate as they may be contacted by a Home Office caseworker to:
In all cases, there will be no expedited application processing until the Home Office has cleared the current backlog and it is confident that it can meet the priority (five business days) and super priority (one business day) service standards.
Leave to remain – switching to new category or sponsor
Monitoring by sponsors will be particularly important in the case of Tier 2 and Tier 5 visa applicants who have commenced employment with a sponsor company ahead of receiving a decision on their application, in line with the Home Office's concession dated 14 April 2020. This concession remains in place and is especially helpful for Tier 2 General change of employment applications where an existing Tier 2 General migrant switches their sponsorship to a new employer.
Applicants are eligible under this concession only where:
As Home Office services gradually resume, decisions will be issued. If an application is rejected as invalid or refused, employment may need to be terminated to comply with prevention of illegal working guidelines. If there are any changes to report, these should be recorded on file while it is not possible to submit reports on the live CoS. Sponsors should seek advice on specific cases of this nature prior to taking action.
The Home Office COVID-19 guidance for applicants was also updated on 22 May 2020 in relation to individuals who are currently in the United Kingdom, and whose visa expires on or before 31 July 2020 and who would ordinarily be required to submit their long-term UK visa application (eg, Tier 2 General) from overseas. These individuals are exceptionally permitted to submit the application from within the United Kingdom by using UK extension application forms and paying the relevant UK fee.
While the Home Office has demonstrated flexibility in this situation, the process of applying within the United Kingdom has not been so straightforward. For example, it is still unclear whether the Home Office will apply entry clearance or further leave to remain rules to those who apply under the concession. The Home Office has been asked to take a pragmatic view where there is increased scope for error.
Applicants should seek advice before submitting an application and ensure that any contact details provided as part of the application are correct and up to date so that any Home Office requests for further information can be received and responded to.
The Visa Application Centres (VACs) – operated by the Home Office's two commercial providers, VFS Global and TLS Contact – have re-opened on a phased basis from 1 June 2020 where local restrictions allow. This includes centres reopening in Australia, parts of Asia and Europe. However, where local restrictions apply, VACs will reopen on a later date to be confirmed.
The latest status updates can be found online when selecting the specific location information at:
Entry clearance applicants must ensure that they can satisfy the requirements of the visa category unless a specific concession applies. Even if a VAC has resumed appointments, it may be necessary to pass an English language test, obtain a tuberculosis (TB) certificate or complete a UK National Recognition Information Centre (NARIC) assessment before submitting the application:
Urgent travel to United Kingdom in compelling and compassionate circumstances
It may be possible to request a visa waiver to allow urgent entry to the United Kingdom without applying for a visa or collecting a visa that has already been granted. This is more likely an option where VAC services remain suspended and there is no other option to request a visa or obtain documents. Where VACs have reopened, there is likely to be more pushback on visa waiver requests. If there are exceptional compelling and compassionate circumstances, individuals should contact the local consulate, the High Commission or their local British Embassy to seek further assistance.
Before leaving the United Kingdom to apply from overseas
Before departing the United Kingdom to submit an application from abroad, applicants should consider their eligibility to apply from the United Kingdom in line with the Home Office's COVID-19 switching concession. This may be an option for individuals holding a temporary UK visa for the United Kingdom which expires on or before 31 July 2020. Applications must be submitted before 31 July 2020 and the relevant requirements should still be satisfied.
If the concession does not apply and the applicant must leave the United Kingdom to submit the new visa application from abroad, they should keep up to date with any requirements on re-entry, such as a 14-day mandatory self-isolation. This may affect availability to attend an appointment at the visa centre.
Expiry of temporary 30-day vignettes
For applicants who were granted visas before the restrictions commenced but were unable to travel within the period of their 30-day vignette, requests can now be submitted for a replacement vignette to facilitate entry to the United Kingdom. There is no government fee for the new vignette and requests can be submitted until the end of 2020.
Requests must be submitted by email to CIH@homeoffice.gov.uk, with 'REPLACEMENT 30 DAY VISA' in the subject line. The vignette holder's name, nationality, date of birth and GWF reference number must be included in the body of the email.
Individuals who use this process will be contacted once VACs reopen to arrange for a replacement visa with revised validity dates to be placed in their passport. On 15 June 2020 the Home Office confirmed that the new vignette will be valid for 90 days.
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 biometric residence permit has already been issued and evidence of this can be provided on entry to the United Kingdom.
Before travelling to United Kingdom
Aside from having the relevant UK visa, in order to travel to the United Kingdom, travellers must also check for any requirements to complete with local authorities. For example, Australian citizens and permanent residents must be granted an exemption before they can travel overseas. There is also a similar email process for South African nationals.
As of 8 June 2020, most international travellers to the United Kingdom must complete a Public Health Passenger Locator form within 48 hours of arriving in the United Kingdom. They must also complete a 14-day self-isolation period on entry.(1)
As services begin to resume in the United Kingdom and some employees return to work, sponsors must consider any notifications to be made to the Home Office via the sponsorship management system to ensure that they comply with sponsor duties.
While social distancing measures have been in place, many employers will have made use of the right-to-work (RTW) check options in line with the Home Office's existing guidance (eg, an online RTW check via video link for biometric residence permit holders). In cases where a fully compliant check has not been possible, the Home Office's adjusted RTW guidance published on 30 March 2020 has assisted employers in maintaining compliance with their sponsor duties by allowing temporary checks using scanned copy documents.
As employers focus on a safe return to work for their employees, those that completed adjusted RTW checks must remember to carry out a further retrospective check in order to be fully compliant. The deadline for completion of the retrospective check is within eight weeks of the end of the adjusted procedure. This end date is to be announced by the Home Office. In the interim, employers should continue to retain a log of all RTW checks using the adjusted procedure so that they can be completed in full later. They may consider carrying out a compliant RTW check at the earliest point at which this becomes feasible in order to reduce the number of checks to do immediately before the deadline.
Follow-up checks will also be required where Tier 2 and Tier 5 applicants have commenced work before receiving a decision on their application in line with the Home Office concession of 14 April 2020. As an interim measure, employers should contact the Employer Checking Service to request a positive verification notice to confirm a valid pending application. Once a decision on the application has been received, employers should perform a valid RTW check. If the application is refused, employers must terminate employment to comply with prevention of illegal working guidance.
Sponsor employers should closely monitor progress for any sponsored workers awaiting a decision on their applications and retain any relevant evidence on file. Where follow-up RTW checks are due, a request for a positive verification notice to the Home Office Employer Checking Service may be required. The need for this service will likely increase where processing times are prolonged and could take the applicant beyond the expiry date of their existing visa.
Sponsor reporting requirements
For sponsored employees placed on furlough or affected by a temporary reduction in hours or salary, each change in their conditions will require further reporting on the sponsorship management system. Once any temporary measures have ended, a report should be made to confirm that hours and pay have returned to at least the same level as stated on the assigned CoS at the point of sponsorship.
With many businesses adapting to remote working, a future return to work may be more flexible, including remote working becoming the norm, both within the United Kingdom and from overseas. Although the Home Office has indicated in their guidance that remote working at a home address during the COVID-19 pandemic would not require reporting as it would be considered a temporary change to the work location, this will not continue to apply once offices have reopened. If remote working continues at this point, any alternative work location must be reported.
For new hires who have been delayed in entering the United Kingdom and affected by expired temporary visa vignettes, sponsors must consider the timing of new vignette requests and subsequent reporting on the COS of any delayed work start date.
Where employees have commenced work on the basis of an assigned CoS, before receiving a decision on their application, sponsors should maintain up-to-date files, including records of any changes to the employee's role and all other reportable changes. Until the application has been processed, it will not be possible to report these in the usual way.
International travel for employees
Although international travel from the United Kingdom should currently be avoided unless essential, some businesses will need to continue to rely on employees being able to travel as part of their role.
Before planning international business travel, sponsors should consider checking the health and safety status of the relevant country (including transit countries) and any requirements on entry to self-isolate which could lead to longer absences from the United Kingdom. Employers should also ensure that employees are not in a higher risk category due to existing health conditions and that employees are aware of any requirements and restrictions in the country that they are visiting (eg, social distancing and the mandatory wearing of masks). As the status in each country has been seen to change quickly and without notice, sponsors should be mindful of any trips planned close to visa expiry dates where a delay in return could affect the possibility of visa extension and potentially trigger a cooling-off period for Tier 2 sponsored workers.
Sponsored employees should record all absences from the United Kingdom (eg, date, country and purpose of visit) and, where the trip has been longer than anticipated due to COVID-19 travel restrictions, ensure that this is recorded on file together with supporting evidence where possible. This may become relevant down the line in relation to an application for indefinite leave to remain (ILR).
Applicants eligible to apply for ILR can continue to complete online submission but must satisfy all of the requirements in the usual way, including in some cases passing an English language test or the Life in the UK test before their application can be approved. This has proven difficult with test centres closing at short notice in March 2020. However, there are signs of movement, with English language and Life in the UK tests resuming in June 2020.
Life in the UK tests are being reintroduced in a phased way, with bookings being taken for tests at a selection of centres from 1 June 2020 onwards. With limited availability and a queue of applicants waiting to book their tests, test dates are now booked up weeks ahead. Full details can be viewed when completing test bookings.
Applicants who are ready to submit their ILR application should note no fast-track service is currently available, so applications can be submitted using only standard processing. Thus, the processing time will be up to six months and applicants cannot travel outside the United Kingdom until a decision on their application has been made. In time, UK Visas and Immigration will announce when it can resume priority and super priority processing.
The Home Office is taking steps to minimise processing times by contacting applicants and requesting supporting documents by return. Applicants should ensure that the details provided to the Home Office are accurate and that emails are monitored so that they can respond to any Home Office requests for information.
As the course of the COVID-19 pandemic remains fluid, so does its impact on UK immigration. Employers should seek counsel to provide updates as further details emerge.
For further information on this topic please contact Andrew Osborne or Priya Gandhi at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Further details of these arrangements are available here.
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