The Coronavirus (COVID-19) pandemic has raised some immigration dilemmas for UK employers especially those with an internationally mobile workforce.
In these unprecedented times, we address some of the top immigration questions which you as an employer may need to consider.
Does an employer still need to carry out right to work checks?
Yes. However, the process has been temporarily adjusted. Where an employer cannot either carry out the checks in person or use the online process under the standard rules, then the Home Office has outlined alternative remote methods for checking the right to work. The applicant can now send the employer a scanned version (or photo) of their document(s) and the employer can then arrange a video call with the applicant to check the original documents remotely. The usual list of acceptable documents still applies.
More details as to the process are available here.
Can a sponsored worker be furloughed under the Coronavirus Job Retention Scheme?
Yes, in principle. Employers are not restricted from furloughing sponsored workers under the UK government's Coronavirus Job Retention Scheme (CJRS).
Any employer, of whatever size and not limited by sector or industry, is eligible for the CJRS. It allows the employer to claim a grant from HMRC equal to 80 per cent. of the wages of so-called "furloughed employees", up to a cap of £2,500 per month, plus the associated employer's national insurance contributions and minimum mandatory automatic enrolment employer pension contributions on that wage. The CJRS will run initially for three months, backdated to 1 March 2020, but may be extended if needed.
Furloughed employees are staff whose employment is not terminated but who are on unpaid leave of absence from work. To be eligible, an employee must have been on the employer's PAYE payroll on 28 February 2020.
An employer may choose to top up the wages of furloughed employees beyond the amount for which the employer is reimbursed but there is no obligation to do so. To qualify for the CJRS, the individual must not undertake work for their employer while they are furloughed.
Normally sponsorship must be withdrawn from a sponsored employee who has been absent from work without pay for more than four weeks. However, the Home Office has confirmed that it will not take compliance action in relation to sponsored employees who are absent for longer than this as a result of COVID-19. Although not expressly confirmed, we anticipate that this approach will apply equally to workers furloughed under the CJRS.
If a sponsored worker is furloughed and they are to be paid 80 per cent. of their wages, this will need to be reported on the sponsor management system. The Home Office has not expressly confirmed that this reduction can be below the minimum appropriate rate set for the role, but this appears to be implicit in their new guidance. Any reduction must be part of a company-wide policy to avoid redundancies. The salary reduction must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended.
Sponsors are not currently required to report authorised absences from students or employees under Tier 2, Tier 4, or Tier 5, where those absences have been the result of the consequences of the COVID-19 outbreak. Employers should however retain records (as with any employee) in line with their record-keeping obligations.
Can an employer continue to employ someone when their visa is due to expire?
Yes. Any current UK visa with an expiry date between 24 January 2020 and 31 May 2020 will automatically be extended to expire on 31 May 2020 if the employee cannot leave the UK because of travel restrictions or self-isolation related to COVID-19.
Employees will need to contact the Coronavirus Immigration Team (CIT) for their records to be updated, providing their personal details (name, date of birth, nationality and visa reference number), as well as a note of why it has not been possible to leave the UK. It is important to be aware that an extension may be declined if it does not relate to travel restrictions or self-isolation.
Employees with a visa expiry date between 24 January 2020 and 31 May 2020 are now permitted to submit their long-term visa applications within the UK (where they would normally be required to submit these from abroad). Employees should still progress any renewals or new applications even where an extension has been applied. Applications can be submitted online and the terms of an employee's leave will remain the same until their application is decided.
Further information can be found here.
For more information about any of the issues raised in this briefing, please contact one of the contacts listed below.
