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COVID-19 Employment: implications for the retention and movement of UK based non-EU workforce

  • Market Insight 1 April 2020 1 April 2020
  • UK & Europe

  • Employment, Pensions & Immigration

COVID-19 Employment: implications for the retention and movement of UK based non-EU workforce
  1. Can individuals still submit their UK visa applications?
    UK visa application centres in the UK and worldwide are currently closed until further notice. As such, whilst applicants can submit their visa application forms online, they cannot attend biometrics appointments. Applicants with appointments booked at UK applications centres in the coming weeks are being cancelled by the service provider and re-scheduled, presently to dates in early to mid-May. The appointment booking system is also shut down so applicants cannot currently make changes to their appointment dates.
  2. When will application centres reopen?
    All centres have closed indefinitely. When application centres reopen, at least initially, we expect delayed processing times even with use of expedited options.

  3. What if an individual's UK leave/visa is expiring/has expired?
    The Home Office has issued welcome concessions for those individuals whose UK visa has already expired or is due to expire. In summary;

    - The concession only applies to those individuals whose leave expires between 24 January 2020 and
      3 May 2020. Individuals who wish to apply for this concession must first contact the Home Office
      Coronavirus Immigration Team, providing all relevant details.
    - Individuals currently in the UK whose visa is due to, or has already expired, and who cannot leave
      because of travel restrictions related to COVID-19, will not be regarded as overstayers, nor will any
      future UK immigration application be prejudiced as a result.
    - Upon notification to the Home Office COVID 19 Team, provided an individual cannot leave the UK
      due to self-isolation or COVID 19 related travel restrictions, any UK visa will be extended to 31 May
      2020.

    As always, individuals who have already submitted application forms for leave to remain in the UK online (and have paid the associated Home Office fees) will have the right to remain in the UK in their current UK Immigration status pending an outcome of their applications.

    Switching into long term visa categories:
    Until 31 May 2020, the Home Office will permit some individuals to apply to switch to a long-term UK visa category from within the UK, which ordinarily could only be submitted from overseas. For example, an individual currently in the UK as a Tier 5 Youth Mobility Migrant and whose Tier 2 Sponsor wishes to submit a Tier 2 General application may do so from within the UK provided:

    - The individual's current UK leave expired/ expires between 24 January and 31 May 2020 including
      those whose leave has already been automatically extended to 31 March 2020.
    - The individual will need to meet the requirements of the route, including where relevant, a compliant
      Resident Labour Market Test and request for a Restricted Certificate of Sponsorship as part of the
      monthly Quota

  4. As a Tier 2 Sponsor, are we still required to notify the Home Office of every change in a migrant's circumstances?
    The Home Office has indicated that Tier 2 Sponsors are relieved from their notification responsibilities in the following circumstances:

    (a) Sponsors do not need to report COVID-19 related authorised employee absences, paid or unpaid

    (b) Usually, when a Tier 2 Migrant is on unpaid leave for a period of four weeks or more, the Tier 2 Sponsor is required to notify the Home Office of this and unless the reason is due to one of the permitted exceptions (such as maternity leave), the Tier 2 employee's visa will be curtailed/cancelled. However there will be no curtailment or cancellation of a Tier 2 visa where such absences are related to COVID-19 reasons.

    The Home Office is yet to publish Guidance of applicable concessions for Tier 2 Sponsors using the Coronavirus Job Retention Scheme (CJRS) for its Tier 2 employees. On the basis of the current guidance, a reduction in a Tier 2 Migrant gross annual remuneration is acceptable as long as this remains above the relevant minimum salary threshold albeit we expect the Home Office to show flexibility even in this scenario.

    (c) With the country in lockdown, most, if not all, Tier 2 Migrants will be working from home. Whilst in the normal course of events, a Tier 2 Sponsor needs to notify the Home Office of a change in migrant's place of work, there is no need to do so where the change relates to the COVID-19 pandemic.

  5. We have a new starter but as we are working from home,  how should we conduct Right to Work ( RTW) checks?
    The Home Office has issued Guidance on how to carry out RTW checks during the COVID-19 pandemic involving the following steps;

    The employee can submit a scanned copy/photo of the relevant ID documentation via email.

    The employer will arrange a video call with the employee to verify the copy documents sent, for example photo, date of birth etc.

    The employer will record the date of the check stating the additional wording “adjusted check undertaken on [insert date] due to COVID-19”.

    Within 8 weeks of the COVID-19 measures ending, employers will be required to retrospectively complete the usual RTW checking process on those individuals who started employment whilst the COVID-19 measures were in force.

    The employer should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”.

    Where possible, we recommend that employers utilise  the Home Office's online right to work checking system (https://www.gov.uk/view-right-to-work) which does not require the 8 week retrospective check albeit that this would require the employee's consent / participation. This system is only available if the employee has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme.

    If you have any queries, please get in touch with Jonathan Chaimovic or your usual contact within the Team.

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