This is a challenging time for businesses - we are learning how to conduct effective team meetings via webcam whilst the cat has decided that your keyboard is the best place to nap. We are seeing work ethics and styles in a very different light and each business concern has to be re-visited.
Your employees are often your greatest asset as a business and the UK Government are doing all that they can to protect that asset. If you need guidance on the support provided by HMRC then please take a look at our employment FAQs.
Now that you have gotten your head around the various avenues of governmental support, you may want to give some thought on what may be required when it comes to caring for your sponsored migrant workers.
This FAQ document represents the questions which are being frequently asked by business owners and HR professionals.
1. We have an employee with a visa that is about to expire - what do we do?
It is highly recommended that your employee submits the appropriate extension application before their visa expires.
If you have an overseas employee in the UK on a short-term visit (i.e. a business visit/trip) and that employee's visa is about to expire (or has expired) then the Home Office guidance states that "your leave will be extended under existing conditions until 31 May 2020. You will not be regarded as an over-stayer or suffer any detriment in any future applications. However, you must make plans to leave as soon as you able to do so". In order to extend this visa, you will need to contact the Home Office Coronavirus Immigration Team ("CIT"). You can do so here.
It is anticipated that the "end date" of 31 May 2020 may be extended if travel restrictions continue.
It is highly recommend that you seek immigration advice before submitting an application or extension request with the CIT - this is a new system which will no doubt be subject to changes and so if your application or request is refused you may find yourself in a difficult legal position.
2. How do we go about booking an appointment for our employees with the UKVI? (UPDATED 27 MAY 2020)
A brief search of the internet will lead you to the fact that all visa application centres within the UK are closed. This happened on 27 March 2020. To be clear, the UKVI are still open and making decisions on applications. It is simply the application centres which are closed.
The purpose of the application centres, for those who have not experienced them, is to facilitate the collection of biometric information from applicants. As an applicant, you would normally book your appointment through the online portal, arrive at your appointment and then give your biometric information. You would also provide all of your original documents so that those can be scanned into the Home Office system (or the originals checked against any documents already scanned in).
With the visa centres closed, individuals cannot finalise their applications. This does not mean however that you do nothing if your visa is about to expire. You can still submit your application online. You just cannot book or attend a biometric appointment at this time.
Under the Immigration Rules, the date of your application is the date you submit the online application form, not the date of your biometric appointment. So long as your "date of application" is before your visa expiry date you should be considered a lawful resident in the UK.
it was announced on 26 May 2020 that visa centres inside the UK will begin opening (in a phased manner) from 01 June 2020. Priority will be given to those who have already submitted and booked their appointments but were unable to attend due to the visa centres closing.
3. We have a prospective hire or overseas employee whom we wish to sponsor into the UK - can we do so?
Most (if not all) overseas UK visa centres are closed as a result of the lockdown measures in those jurisdictions. You can start the visa process by complying with the Resident Labour Market Test (if applicable) and completing the online application form. You can also secure a Certificate of Sponsorship and assign it to your overseas employee. However the application cannot be finalised until the individual attends their biometric appointment. A visa also cannot be issued until the biometric appointment has been completed. We do not yet know how long it will be until the visa centres reopen.
4. We currently have an employee outside the UK. They were issued with a 30 day visa to allow them entry into the UK but they have been unable to travel. What can we do? (UPDATED 27 May 2020)
Normally in this situation, your employee would have to apply for replacement visa using a Transfer of Conditions application. The UKVI updated their guidance to confirm that a replacement visa can be obtained free of charge until the end of 2020. In order to obtain a replacement, you will need to contact the Home Office Coronavirus team with your name, nationality, date of birth and your GWF number. The Visa Application Centre will then contact you to arrange a replacement visa to be endorsed in your passport.
5. We would like to hire someone who is already in the United Kingdom - can we do that?
This does depend on the exact circumstances.
It is still possible to submit an online application but you cannot attend a biometric appointment as the visa centres are closed (see question 2 for more details).
Recently issued Home Office guidance states that if a business is a sponsor then you may allow a prospective employee to start work before their visa application has been decided if:
- Sponsors have assigned them a Certificate of Sponsorship;
- The employee submitted their visa application before their current visa expired; and
- The role they are employed in is the same as the one on their Certificate of Sponsorship.
However, be careful. If the employee's application is eventually refused then you will be required to terminate their employment.
You should also be aware that your reporting duties as a sponsor start from the date of employment not from the date that the application is granted.
6. We have a prospective employee who would normally have to leave the UK and apply from outside the UK. Due to the current restrictions, the employee cannot leave the UK so what should we do? (UPDATED 27 MAY 2020)
If your prospective hire is in the UK on a visa which expired or will expire between 24 January 2020 and 31 July 2020 then they can submit their application from within the UK. The Home Office guidance states that if you are in this scenario then it is possible to switch visa categories in the UK even if you would normally have to do that same switch from outside the United Kingdom. A common example would be switching from a visit visa or Tier 5 to a Tier 2 (General) visa.
7. Our sponsored workers will be working from home - do we need to report this?
Normally you have to report a change of work place but recent Home Office guidance states that employers do not have to make this report.
8. Can we use the Coronavirus Job Retention Scheme for our non-EU national employees?
Home Office guidance states that the scheme can be used for non-EU nationals. The business will need to meet the same eligibility requirements - see our employment FAQs.
9. In order to avoid redundancies, we are offering unpaid leave - is this permitted under the sponsorship regime?
Sponsored workers can usually only take 4 weeks' unpaid leave per calendar year. However, in the current circumstances, the Home Office have changed their position and have said that sponsorship does not need to be withdrawn if employees are absent from work (without pay) for more than 4 weeks and that absence has to relate to coronavirus.
10. In order to avoid redundancies, we are looking to reduce the hours and salaries of our workers - is this permitted under the sponsorship regime?
As an alternative to unpaid leave or furlough, you may wish to look at reducing the hours and salaries of your employees.
Normally sponsored workers can work part time but their salary would still have to remain above the minimum level stipulated in their visa category. However the Home Office have issued guidance stating that salaries can be residence to 80% (or £2,500 per month, whichever is lower). The reductions must be part of a company-wide policy and must be temporary in nature. When the company-wide arrangements end then pay must return to previous levels.
11. How do we conduct right to work checks?
You are still under an obligation to conduct right to work checks on new employees and also on those employees who are on time-limited leave. Recent guidance has been produced which states that an employee can provide their passport or BRP electronically to the employer and that electronic copy is then verified by way of video call. When you do a right to work check using this new digital process, make sure you record the date of the check and mark it as "adjusted check undertaken on [insert date] due to COVID-19".
If you have an employee who holds a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme then you can also use the Home Office online right to work checking service during the video call. You must have employee's permission to view their details so ensure you obtain that permission.
When the COVID-19 circumstances have calmed down, employers will have to re-check those people checked under this temporary digital procedure.
Accurate as of 12 May 2020
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