The Covid-19 pandemic has triggered an immense economic and social fallout, the full effects of which won't be known for some time. However UK employers with Home Office sponsor licences don’t have the luxury of time as they need urgent clear immigration and employment law advice on how Covid-19 will impinge on their business and HR practices. In this blog we look at the most frequently asked questions on Covid-19 and business immigration and employment law.
UK immigration and employment law solicitors
Whether you are a multi-national, a SME or start-up business it is best to be aware of and address the business immigration and employment law ramifications of Covid-19. The business immigration solicitors and employment lawyers at Legal 500 and Chambers Guide to the Legal Profession recommended OTS Solicitors are taking calls from businesses large and small on their Covid-19 business immigration questions.
Appointments are available through video conferencing, Skype or telephone appointments with a cyber secure client portal should you need to send us documentation.
business immigration and employment law changes
When it comes to Covid-19 related immigration and employment law issues it is hard to keep pace with the level and speed of changes, including what can feel like U-turns. For example, the waiver of the immigration health surcharge for visa holders employed by the National Health Service, the planned quarantine procedures or changes to the furlough scheme.
Therefore, if you do have a question about any of the immigration or employment law developments referred to in this blog, it is best to give our top business immigration solicitors a call on 0203 959 9123 or complete our online enquiry form to get the very latest information and advice about how the immigration and employment law development might affect your business.
UK quarantine plans
Many work visa holders entering the UK to take up employment with their sponsoring employer or existing UK or sponsored workers returning from seeing family overseas may get caught up in quarantine. Employers need to look ahead to plan for:
The effects of quarantine on the workforce and potential staff shortages and whether quarantine periods will be treated as unpaid or holiday leave for existing Employees
The health and safety issues for the business of Employees failing to comply with quarantine rules
Reporting duties if sponsored workers are unable to return to work as they are in quarantine.
The current government plan, as part of what is being referred to as the ‘’Covid-19 recovery strategy’’ says that people arriving in the UK after the 8 June will be asked to quarantine for fourteen days unless they are on an exempt list.
The information available to employers and to Employees on the quarantine policy is limited but employers need to plan ahead given the potential implications for business travel as well as staff absences.
Covid-19 and sponsor licence holders
Sponsor licence holders have reporting and record-keeping duties in relation to their sponsored Employees. The Covid-19 pandemic has made it far harder to comply with those reporting duties as well as juggle the demands of trying to keep a business financially afloat and manage the health and safety at work issues surrounding Employees remaining in or returning to work after the coronavirus outbreak.
Top immigration solicitors say that the best option is for sponsor licence holders and business owners to take legal advice if they are unsure of the implications of Covid-19 and what action they can take to furlough a sponsored worker or make them redundant. Failure to do so, resulting in not meeting sponsor licence duties, may result in the eventual auditing of the sponsor licence and its downgrading, revocation or suspension.
sponsor licence holders need to be aware that despite the turmoil and havoc created by the coronavirus they still need to:
Report changes to their business circumstances as usual on the sponsor licence management service, such as a change of business address or a change to their key personnel
Keep on top of the Home Office temporary concessions so they know what changes have been made to reporting duties. For example, there is no need to report that a sponsored worker has been allowed to work from home during the Covid-19 outbreak
Use the Home Office concessions to the businesses advantage to help them survive and recover from the financial impact of the coronavirus
Keep an eye on the future and keep records so, if there is a sponsor licence audit or an employee grievance or claim, decisions can be shown to have been made objectively and fairly.
sponsor licence holders and the furlough scheme
Importantly for sponsor licence holders, the government furlough scheme can be used to furlough sponsored workers on work visas. There was initial concern that sponsored Employees could not receive government ‘’handouts’’ because their visas conditions say they can't access public funds. HMRC has clarified that:
Non-UK nationals are eligible to be furloughed
Grants under the furlough scheme are not counted as ‘‘access to public funds’’
The inclusion of sponsored workers as eligible participants in the furlough scheme is sensible as otherwise employers would have faced employment law issues from:
Existing UK and settled workers who are furloughed, especially if the employer was unable to top up the salary for furloughed workers to full pay
Sponsored Employees if they were selected for redundancy based on the employer’s inability to put them on furlough rather than looking at a full range of redundancy selection criteria. That isn’t to say that you can't make a sponsored employee redundant before or after furlough but an employer must comply with statutory redundancy law and the redundancy terms in the worker’s employment contract. Importantly, the employer must not discriminate between UK and settled workers and non-EEA nationals in the redundancy selection process.
Can a business reduce a Tier 2 sponsored worker’s salary?
Many employers have asked if reducing a sponsored worker’s salary by placing them on furlough conflicts with:
The immigration Rules and minimum salary thresholds or
Their duties under their Home Office sponsor licence.
Under the current furlough scheme rules, an employer can claim up to eighty percent or £2,500 per month of the employee’s salary from the government, whichever is the lower figure. An employer can choose to top up a workers’ salary but they don’t have to do so, even if the employee is sponsored. The top priority is to ensure that any furlough and top up pay decisions do not discriminate for or against UK and settled workers and sponsored non-EEA nationals.
If you chose to place a sponsored worker on furlough you must:
Keep a record
Inform the Home Office of the furlough (and any salary reduction) as part of your sponsor licence duties
At the end of the period of furlough reinstate the sponsored worker’s salary to the figure specified on the worker’s Certificate of Sponsorship.
As well as keeping an individual record on each employee’s HR file about furlough it is also best to record and retain your furlough selection process so there can be no questions asked whether the business either selected non-EEA national sponsored workers for furlough or made them continue to work throughout the pandemic whilst furloughing UK and settled workers. Equally it is best to record your policies on topping up furloughed worker’s salaries to show that the decision did not depend on their visa status but rather than job role or other neutral selection criteria.
This type of record keeping is important not just to avoid any grievance claims by either sponsored or settled workers but also to ensure that if your business is the subject of a sponsor licence compliance visit in future your HR staff can demonstrate that policy and individual decisions were made impartially, correctly and a record kept.
What should a business do if a sponsored worker’s visa is due to expire?
The Home Office said that anyone who is in the UK and whose visa is due to expire between the 24th January 2020 and 31 July 2020 will have their visa extended until the 31st July if they cannot leave the UK due to travel restrictions or they are in self-isolation due to Covid-19. This date may be extended beyond the 31 July.
However, the Home Office guidance states that a visa holder should not apply to extend their visa until the 31 July (or any later announced date) if the visa holder wants to remain in the UK on a long term basis. The correct route for them is to apply for a visa extension or apply to settle in the UK.
If an employee only requires a short term extension to their visa they can apply online to the Home Office for an extension until the 31 July. The employee should receive confirmation that their visa has been extended and this should be recorded by the business for the purposes of:
Review of right to work eligibility where Employees have a time limited right to work in the UK.
However, immigration solicitors can't stress enough that it is best that Employees take immigration legal advice before applying for a visa extension until the 31 July. That is because the Home Office may say that the application is wrong because the employee intends to remain in the UK beyond the 31 July and they should make:
A visa extension application
A visa switch application
A settlement application.
The Home Office latest released guidance states that if a visa holder has already applied for a visa extension until the 31 May then the Home Office will automatically extend the visa end date to the 31 July 2020.
Can a sponsored worker start work before the grant of their visa?
If a visa applicant has an outstanding in-country application under the Tiers 2 work visa or Tier 5 temporary visa category then temporary concessions to the immigration Rules say that the visa applicant can start work with their new sponsoring employer pending a decision on their visa application, provided if the following requirements are met:
The worker has been assigned a Certificate of Sponsorship by the new sponsoring employer
The application was submitted online before their current visa expired and this has been evidenced to the sponsoring business
The job is the same as the one listed on the outstanding visa application linked to the Certificate of Sponsorship.
The sponsoring business must comply with sponsor licence reporting responsibilities from the date that the Certificate of Sponsorship is assigned to the new employee rather than the date that the visa application is granted. As the sponsor licence holder won't be able to report information on the sponsor licence management system until a visa has been granted it is important to ensure that any reportable matters are recorded in the worker’s HR file.
If the visa application is refused by the Home Office then obviously the worker cannot remain in the employment of the sponsoring business as that would be in breach of their sponsor licence and illegal working legislation.
Can a business place a sponsored employee on unpaid leave?
Temporary concessions to the immigration Rules mean that a business can place a sponsored worker on unpaid leave or grant a voluntary period of unpaid leave. However, the sponsored worker will not be entitled to access to public funds and the sponsoring employer must consider their sponsor licence compliance duties.
Normally a sponsoring employer can only allow a Tier 2 sponsored worker to take up to four weeks of unpaid leave per calendar year. If a worker is employed on a part time basis then the unpaid leave allowance is calculated on a pro rata basis.
The Home Office's Covid-19 guidance for sponsor licence holders says that a business does not need to withdraw their sponsorship of a worker and that they will not face enforcement action if any length of unpaid absence from work is authorised provided it is due to the coronavirus. For example, an inability to return to the UK because of travel restrictions or ill-health.
As the Home Office concession on unpaid absences relates to Covid-19 it is best to ensure that HR file for the individual sponsored worker’s records the reason given for the unpaid leave to ensure the business is protected in case of any future Home Office sponsor licence audit.
Can a business reduce the hours or salary of a sponsored worker?
If an employer is forced to consider cutting salaries or reducing working hours then it is important that any Tier 2 workers are not discriminated for or against and that the business complies with its sponsor licence duties.
If a sponsored hours are reduced, resulting in a reduction in salary, or the worker is continuing in a full time role but on a reduced salary because of Covid-19 then the salary reduction and any reduction in hours should be reported on the sponsor management system within ten working days of the change.
Normally if a salary is reduced below the minimum salary threshold a business can't continue to sponsor an employee but Home Office concessions say if sponsors have temporarily reduced or ceased trading then they can temporarily reduce the salary of sponsored workers. The concession means a business doesn’t have to pay their sponsored workers the minimum salary threshold for their job type and visa category, including when they are furloughed.
Once the temporary salary reduction has ended, the visa holder’s salary must be returned to at least the same level as previously stated on the assigned Certificate of Sponsorship.
Terminating the employment of a sponsored worker
Unfortunately, in the current economic climate many business owners are having to face the prospect of making job cuts, including the jobs of sponsored workers.
If a sponsored worker is made redundant then an employers must notify the Home Office of the termination through a report on the sponsor management system. The report should be made within ten working days of the employee's final day of employment.
In normal circumstances, notifying the Home Office of a sponsored worker's termination or redundancy will result in the curtailment of the worker’s visa (sixty days) and a requirement to leave the UK if the worker can't find an alternative employer. Once the worker has left the UK there is a twelve month cooling-off period before they can apply for a new work visa unless they fall within one of a few limited exemptions.
The Home Office has said that if a worker has been made redundant and their curtailment visa would expire before the 31 July 2020 then the worker will be able to stay in the UK until the 31 July if Covid-19 means they can't return to their home country. However, if a worker needs a new Tier 2 visa or wants to switch visa or apply to settle they should make their substantive application rather than apply for the short extension.
If you are concerned about the immigration and employment law risks relating toCovid-19 and protecting your business it is best to get legal advice. The top team of immigration specialists at OTS Solicitors can support you by answering all your Covid-19 questions on business and immigration law and assist you with the management of your sponsor licence. Call us on 0203 959 9123 or click here.
UK immigration and employment law solicitors
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Posted on: Tuesday, 26 May, 2020