UK businesses who have a licence to sponsor the employment of migrant workers are not exempt from complying with their sponsor licence duties during the 'coronavirus' (COVID-19) pandemic.
The Home Office has published guidance explaining the temporary exemptions and policies applicable to licence holders during this unprecedented time, which is quite convoluted and difficult to interpret.
Below we provide the answers to some of the most common questions asked by sponsors since the onset of the pandemic.
How do I conduct right to work checks during the lock-down?
From 30 March 2020 onward and until further notice, temporary right to work check provisions have been implemented by the government. Employers do not need to see original documents, and employees and/or job applicants can instead send clear and legible scanned/photographed documents to their employers using email or a mobile application.
Right to work checks should be completed via video call after the employer has received a digital copy of the original documents, with the job applicant/existing employee holding their original documents up to the camera so the employer can compare and verify their physical appearance against the photograph on the document. Following a satisfactory call, the employer should make a record of the check with the following information included: 'adjusted check undertaken on [insert date] due to COVID-19.'
The Home Office's online Employer Checking Service should be used if a prospective or current employee cannot or will not provide any of the required documents via the methods mentioned above. Those potential/current workers with a valid biometric residence permit/card, or EU Settlement Scheme status and who give express permission, can still use the online right to work check service during a video call with their employer to prove their right to work in the UK.
How long will the temporary right to work provisions last?
We do not know at this time how long the temporary provisions will last. The Home Office have said they intend to give advance notice of a date when right to work checks will resume their normal prescribed procedure.
Once standard processes resume, employers will then have 8 weeks to conduct retrospective right to work checks on employees who began employment during the COVID-19 measures, and on existing employees who required a follow-up right to work check during this period. The retrospective check should include the following annotation: 'the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.'
My employee needs to extend their Tier 2 (general) visa. What should he/she do?
The Home Office has confirmed that if a visa holder submits their extension application online prior to the date of their current visa expiring, the terms of their current leave to remain will remain the same as they were at the time of application.
This means that for an existing sponsored employee, they will be able to continue working for their employer beyond the expiry of their visa, so long as they submit their application to extend online (including payment of all relevant application fees) prior to their visa expiry and they/their employer keeps appropriate records of this.
The submission of an in-time online visa extension application will maintain the existing sponsored worker's lawful immigration status in the UK despite not being able to attend a biometric enrolment appointment/there being delays in a decision being made, and will protect both the sponsor and sponsored worker from any future immigration enforcement action.
What happens if I have issued a CoS to an employee who does not yet have their visa?
If a sponsor has issued a CoS (Certificate of Sponsorship) to an employee who has not yet applied for their work visa, the visa application will still be accepted and considered even if the employment start date on the CoS has changed. These applications will be assessed and decided on a case by case basis. For example, the Home Office may still accept a CoS if it has become invalid because the employee was unable to travel as a result of the coronavirus.
Can a new employee start work if they have not yet received their BRP card?
No. For new employees whose visa applications have been approved, but have not yet received their BRP (biometric residence permit) cards from the Home Office evidencing their right to work, they will not be able to start work until they have submitted their biometric data at an enrolment centre (when they re-open) and obtained their BRP card.
Can sponsored employees work from home?
Yes. Sponsors are currently not required to inform the Home Office of employees working from home due to the coronavirus, however, other changes to their working arrangements must still be reported as normal via the Sponsorship Management System (SMS).
What if sponsored workers are absent from work due to the coronavirus?
Absences of sponsored workers due to coronavirus illness, self-isolation, or travel restrictions are being treated as authorised and therefore do not need to be reported to the Home Office.
This includes a sponsored worker not showing up for their first day of work or being absent from work for more than 10 consecutive days. Sponsorship of a migrant worker currently does not need to be withdrawn if the worker is absent from work without pay in excess of 4 weeks.
Can I furlough sponsored employees?
Yes, if certain conditions are satisfied. The Coronavirus Job Retention Scheme ('Furlough' scheme) currently applies to UK workers so long as they are employees on UK contracts, and were on the company's PAYE payroll on 28 February 2020. This scheme allows employers to retain employees who would "otherwise be at risk of being laid off" due to the impact of COVID-19.
The 'Furlough' (Coronavirus Job Retention) Scheme can also be applied to sponsored workers. In the case of sponsored workers, the furloughing must be part of a company-wide policy to prevent redundancies, and there must not be unequal treatment of sponsored and non-sponsored workers. Sponsored workers are not permitted to undertake paid work for their employer, but may complete training or voluntary work in limited circumstances.
Furloughed sponsored workers may choose to augment their reduced income through means of additional employment, however this is only allowed for a shortage occupation role, or where the sponsored worker takes on an identical role on the same level as their sponsored role. The supplementary employment must adhere to the conditions of a sponsored worker's visa.
Sponsors are still required to report any drop in a sponsored worker's salary within 10 working days of the change taking place, and the sponsorship should be withdrawn if a reduction in salary results in the employee's salary falling below the salary threshold required for their role. Once the 'Furlough' scheme is no longer in operation, the salary of furloughed sponsored workers must return to at least what they were previously paid before they were furloughed.
Can I terminate a sponsored worker's employment due to the coronavirus?
Yes. A sponsor may still terminate a sponsored worker's employment or make the sponsored worker redundant if necessary. The sponsor will have to report the termination/redundancy no later than 10 working days from the last day of the sponsored worker's employment.
If you need further explanation or help with any of the above questions, please speak to a member of our immigration team.
