UK employers and their Employees are having a torrid time with fears over the UK economy and the impact on business because of either Brexit or Covid-19 and the financial fall out. For employers who sponsor Tier 2 (General) visa workers it is best to keep on top of changing sponsor licence requirements and reporting duties. For sponsored employees it is vital that you know your employment and immigration law options. In this blog we look at the effects of the Covid-19 pandemic on sponsoring Tier 2 (General) visa workers. One thing immigration solicitors can say for sure is that the temporary rules introduced because of Covid-19 will change and therefore it is vital that employers, HR directors and Employees keep up to date with the immigration Rule changes.
If you have questions about changes to sponsor licence regulations and reporting duties because of Covid-19 or need help with the management of your sponsor licence or have a question about your Tier 2 (General) visa or employment then call our specialist employment law and sponsor licence solicitors on 0203 959 9123 or complete our online enquiry form. Help is available through video conferencing, Skype or by telephone appointment.
immigration, Covid-19 and the global pandemic
For a while the UK carried on business as normal, not letting the global pandemic affect business activities. However, that approach was followed by the UK government imposed lockdown that not only severely curtailed business but also closed down many aspects of immigration to the UK through the closure of visa processing by the Home Office. Immigration solicitors say that the good news is that visa processing is starting to resume, although with a significant back log the Home Office isn’t currently offering its premium or priority service.
Sponsored workers starting employment prior to visa decision
Immigration solicitors say that for the present the Home Office has maintained the concession that sponsor licence holders can continue to employ overseas workers who applied for a Tier 2 (General) visa in order to move to a new UK employer from their previous sponsoring employer but whose visa application hasn’t been processed by the Home Office because of Covid-19 related delays.
However, it is essential that employers monitor their sponsored Employees and comply with the Home Office's concession dated the 14 April 2020. Failure to do so could place the sponsor licence in jeopardy.
Overseas workers and sponsor licence holders are only able to use the Home Office concession if:
The employer has assigned a Certificate of Sponsorship to the employee and
The employee’s visa application was submitted before the expiry of their old Tier 2 (General) visa and
The employee’s job role is consistent with the job description stated on the Certificate of Sponsorship. This criteria is particularly important to bear in mind when employers are having to reassign Employees to different job roles because of staffing shortages or changes in work practices brought about through Covid-19 measures.
Until the Home Office is able to process all outstanding Tier 2 (General) visa applications by those sponsored workers currently taking advantage of the Home Office April 2020 concession it is essential that any changes or sponsor licence reporting issues are recorded on the employee’s HR file. If an employer isn’t sure what to do about a particular issue then it is best to take legal advice from sponsor licence solicitors so you don’t fall foul of your sponsor licence duties.
Switching to a Tier 2 (General) visa from within the UK
In May 2020 the Home Office issued guidance for individuals in the UK whose visas were due to expire and who, in normal circumstances, would have had to leave the UK to make their visa application from overseas. The concession end date is currently the 31 July 2020 and if an individual’s visa expires prior to that date they can apply for a visa, including a Tier 2 (General) visa, from within the UK rather than having to try to travel overseas during Covid-19 travel restrictions.
Covid-19 and sponsor licence compliance
As business starts up again in most sectors of the economy keeping up with employee paperwork may be low down on the list of priorities when employers are struggling with securing supplies and meeting all the Covid-19 health and safety requirements to ensure that their staff and customers are safe in their business premises.
If you know that your business will struggle to cope with the demands of sponsor licence compliance as well as the challenges of getting back to business with the additional challenges posed by Covid-19 then use of a sponsor licence management service may mean that you are free to concentrate on business matters, knowing that sponsor licence duties aren’t being ignored.
With the return of workers to their places of employment and changes to the furlough scheme it is important to ensure that sponsor licence reporting duties are complied with as failure to adhere to sponsor licence obligations may have long term consequences for the business and so should not be ignored in the rush to open up your business again.
Covid-19 and right to work checks
To take into account the Covid-19 restrictions the government announced temporary changes to right to work checks for all Employees, including sponsored Employees on Tier 2 (General) visas. The government has not yet announced when the temporary right to work check measures will end but employers need to be aware that full retrospective right to work checks need to be carried out and recorded within eight weeks of the end of the temporary measures.
It is therefore best practice to log the details of all Employees who have had temporary right to work checks carried out through scanned paperwork so that a full right to work check can be completed and recorded on file within the deadline, once it is announced by the Home Office.
It is best to keep up to date with the changes to the rules on how and when to carry out right to work checks to avoid the potential for breaching illegal working legislation.
Covid-19 and sponsor licence reporting duties
If your business has placed Tier 2 (General) visa workers on furlough or made temporary changes to their terms of employment then these changes will need to be reported on the sponsor licence management system.
The Home Office has said that during the Covid-19 pandemic there is no need to report if a sponsored worker is working from home but if , as many employers are envisaging, working remotely from home becomes the ‘’new norm’’ then this change will require reporting.
Covid-19, furlough and Tier 2 (General) visa holders
Tier 2 sponsored workers are eligible for furlough or the job retention scheme in the same way as settled workers. However, immigration solicitors say that one consideration when it comes to sponsored workers is their furloughed pay.
If furloughed pay means that the sponsored worker’s income falls below the minimum salary then an employer is allowed to reduce their Tier 2 workers’ salary without it affecting the worker’s immigration status provided that the salary remains above, or on, the minimum salary for the role the worker is employed to do. If the salary is reduced below the minimum then the rules say that the employer can't continue sponsoring the Tier 2 worker unless the following criteria are met under a Home Office concession:
An employer has temporarily reduced the salary of their sponsored employee to 80% of the salary recorded on their Certificate of Sponsorship or £2,500 (whichever is lower) or the sponsored employee has not been furloughed but has taken a 20% pay deduction
The business has temporarily reduced or ceased trading
The pay cut is part of a measure to reduce redundancies and is temporary with the intention being to reinstate the sponsored worker’s salary to its pre-Covid-19 level once the arrangements have ended.
The issue for sponsor licence holders and sponsored workers will be whether the government extends the furlough or pay cut concessions beyond October 2020. Many business owners will be arguing that the effects of Covid-19 on their business will last far longer than Autumn 2020 and that they can't afford to treat sponsored workers any differently to settled workers, even if that means that a sponsored worker has to lose their sponsorship as the business can't afford to reinstate the salary to its pre-Covid-19 level.
Covid-19 and Tier 2 (General) visa holders applying for Indefinite Leave to Remain
Immigration solicitors have received enquiries by Tier 2 (General) visa holders worried about how the financial fall out from Covid-19 will impact on their plans to apply for Indefinite Leave to Remain thus freeing them from immigration controls.
When it comes to Indefinite Leave to Remain applications the Home Office has not temporarily reduced the minimum income requirement for ILR applicants applying for Indefinite Leave to Remain on Tier 2 (General) visas. That means that some ILR applicant’s plans have been put on hold and in the meantime they have the additional stress and worry of whether they may be made redundant from their sponsored employment. If you are in that situation it may be best to take immigration advice to check and see whether you have any alternative immigration options available to you.
Covid-19, redundancy and sponsored Tier 2 workers
All the news says that when it comes to employment and the impact of Covid-19 then the worst may be yet to come. That is very worrying for Tier 2 (General) visa holders as their visa and continued stay in the UK is based on them having a sponsored employer.
The current immigration Rules say that if you are a Tier 2 (General) visa holder and you are made redundant then you have 60 days to find a new job with an employer who has a sponsor licence or who is willing to apply to the Home Office for a sponsor licence.
If an employer makes a sponsored worker redundant or terminates their employment for any other reason then the employer is under a duty to report the termination of employment to the Home Office as part of their sponsor licence duties. The immigration Rules say that the employer has to notify the Home Office within 10 days of the sponsored worker’s final day of employment. The Home Office will then curtail the sponsored worker’s visa to 60 days from the date of the decision to curtail the visa (rather than 60 days from the date of redundancy or date of final day of employment).
Immigration solicitors say that whilst sponsored workers may feel that they are being unfairly treated as indirect victims of Covid-19, because there may be little prospect of them securing new sponsored employment within the 60 day curtailment period, there is no right of appeal against a decision to curtail a Tier 2 (General) visa. Accordingly immigration solicitors say that if you are a Tier 2 (General) visa holder and you are at risk of redundancy it is best to take legal advice as soon as you can to look at your immigration and employment law options. That is important because:
If a Tier 2 (General) visa worker stays in the UK after the date that their visa is curtailed without applying for a new visa they will be classed as an overstayer. This may affect the prospects of you securing another visa or successfully applying to settle in the UK
If you are fortunate enough to secure employment with an employer that holds a sponsor licence you must apply for a new Tier 2 (General) visa – you cannot transfer the existing work visa to a new sponsor licence holder and to their Certificate of Sponsorship law them
If you can't obtain another sponsored job and you don’t have any other alternate routes to apply for a visa to remain in the UK then if you leave the UK in accordance with your curtailed visa then you will be subject to a 12 month cooling off period before you are able under the immigration Rules to apply from overseas for a new Tier 2 (General) visa.
Whether you are a business owner sponsoring a Tier 2 (General) visa holder or you are a sponsored employee you are likely to have legal questions about how Covid-19 is affecting your business and sponsor licence or how the coronavirus is impacting your employment and your Tier 2 (General) visa.
OTS Solicitors specialise in business immigration and personal immigration law . The firm is recommended in the two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession. The specialist lawyers provide easy to follow immigration and employment law advice looking at your best options and providing follow-up advice and legal services from applying for a sponsor licence, sponsor licence management services, settled status one day application service for existing EU citizen Employees and HR staff training on sponsor licence compliance and reporting duties as well as employment law advice for Tier 2 (General) visa holders and settled workers.
For expert immigration and employment law advice that you can trust, call the sponsor licence and employment lawyers at OTS Solicitors on 0203 959 9123 or contact us here. Appointments are available through video conferencing, Skype or by telephone appointment.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Tuesday, 30 June, 2020