2020-06-19
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Coronavirus (COVID-19) and immigration: double trouble for employers

Home / Knowledge base / Coronavirus (COVID-19): double trouble for employers

Posted by Matthew Davies on 19 June 2020

Matthew Davies - Immigration Lawyer
Matthew Davies Partner - Head of Business Immigration

On 5th March 2020, the Government unveiled its long-expected revised Immigration Bill to re-balance the immigration system and end Free Movement for EEA nationals from 2021. It simultaneously faced another priority: escalating the response to COVID-19.

As the Immigration Minister and Chief Medical Adviser both took to the stage, businesses wanted to know how to manage an unfortunate combination of two unwelcome disruptions.

‘Today we’ve taken the momentous first step to end free movement and take back control of our borders, delivering on the people’s priorities’, said Minister for Future Borders and Immigration, Kevin Foster, presenting the Bill in place of the embattled Home Secretary.

Shortly afterwards, Chief Medical Officer, Chris Whitty, gave the first of his increasingly alarming briefings on what was coming to, and expected of, the UK.

More than three months on, “our borders” and “the people’s priorities” look very different. Borders were shut down, at least to lawful entrants; many planes remain grounded, and immigration applications cannot proceed due to Government lockdowns. Few are discussing future immigration policy now; Brexit fears seem almost forgotten. Employers are firefighting the immediate consequences of the most severe national crisis since World War II, with an economy and workforce in turmoil. Everyone’s first priority is the safety of their family’s health and security.

But the economy is still part of the picture, and with immigration having been a key part of the economy for the last 25 years, Governments and businesses still have to manage it to their advantage in the immediate and longer term.

The challenge for employers: managing migration in a crisis

It was possible to apply employment law principles quickly to the problems of absence, infection management and furloughed employees. Dealing with immigration compliance, pending applications and recruitment costs already committed as travel advice changed by the day, has proved far more difficult. In an international crisis, global mobility has rapidly become fraught and complex.

The first formal guidance setting out the principles of the Government’s approach was issued on 27 February 2020 in relation to Chinese nationals and absences by Tier 2,4 & 5 migrants due to COVID-19:

"The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason."

A dedicated helpline was set up; within days, it was clear that its limited scope (migrants from China) was no help at all to the majority of employers and situations.

Having received some criticism, and following much lobbying from employers, lawyers and politicians, the Government has clarified the position in some situations. We can give some clearer pointers on those causing most concern, although all should be addressed on a case by case basis. Here are the issues which we are seeing most often:

Trapped by travel?

Many who have been issued Certificates of Sponsorship or have applied online for entry clearance in another category cannot complete their applications by attending biometric appointments overseas because the entry clearance posts are closed. The Government’s biometric provider has now moved to actively discouraging applications (3 April):

‘Due to the impact of COVID-19 and the worldwide border, travel and public health restrictions, including Visa Application Centre (VAC) closures in many countries, UKVI services are limited and we are unable to meet our usual service standards. Therefore, we are not encouraging applications at this time and cannot say when your application will be decided if you do decide to apply. We continue to keep the situation under review and hope to resume normal services when we are able’.

We understand that, for example a Certificate of Sponsorship with a 3-month validity may still be accepted for entry clearance after that that time in light of this advice, and that the 3-month window for assigning a Restricted Certificate of Sponsorship in the first place will be extended.

So, some may be trapped outside the UK but decide to apply online in an application category that would normally require an in-country process, in the hope of applying for entry, or vice versa. There is provision for this already in the Immigration Rules, subject to Government discretion:

‘33A. Where a person having left the common travel area, has leave to enter or remain in the United Kingdom which remains in force under article 13 of the Immigration (Leave to Enter and Remain) Order 2000, his leave may be varied (including any condition to which it is subject in such form and manner as permitted for the giving of leave to enter. However, the Secretary of State is not obliged to consider an application for variation of leave to enter or remain from a person outside the United Kingdom.’

Migrants who travelled on business and whose statuses must be renewed in the UK may be unable to return for the time being due to travel restrictions, with the risk of forced expiry, loss of accrued entitlements to indefinite leave and of access to the UK and their jobs. Others who were required to leave due to expiry, or to apply for a new status cannot.

On 24 March, the Government confirmed that individuals who are in the UK legally, but whose visa is due to expire, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will not be regarded as an overstayer, or suffer any detriment in the future.

  • A visa will be extended via a simple notification process to 31 July 2020 if an individual cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID19). Individuals must contact the Coronavirus Immigration Team email to advise of their situation. A dedicated Government UKVI email address requiring basic details is the contact point; there is also a helpline.
  • Migrants trapped in the UK can switch to a long-term UK visa until 31 July. This includes applications where they would usually need to apply for a visa from their home country.
  • They will need to meet the requirements of the route they are switching into and pay the UK application fee.
  • Those whose leave expires between 24 January and 31 July 2020, including those whose leave has already been automatically extended to 31 May 2020, are eligible to apply online.

Home Secretary Priti Patel said in anticipation of this (24 March):

“The UK continues to put the health and wellbeing of people first and nobody will be punished for circumstances outside of their control. By extending people’s visas, we are giving people peace of mind and also ensuring that those in vital services can continue their work.”

An announcement about further extensions is expected. More details can be found here.

UK Biometrics cancelled?

The vast majority of biometric enrolment appointments, the last stage of extension and change of status applications for migrants in the UK, were being cancelled by the end of March. This means that applications could not be completed.

Although in these cases status is preserved by statutory operation of law under the Immigration Act 1971, applicants are still in limbo – although they probably cannot travel anyway due to lockdowns. A phased reopening of UK and overseas biometric appointments has recently begun, first to clear backlogs of cancelled appointments during full lockdown. Application centres in severely affected regions are still closed, and priority appointments are generally not available anywhere.

What about Indefinite Leave, naturalisation and Life in the UK Tests (LITUK)?

Indefinite Leave applicants must demonstrate that they have spent a requisite proportion of time in the UK – what if their enforced absence meant they exceeded the thresholds?

We await clearer guidance but are advising on the assumption that Priti Patel’s assurance (see Trapped by travel, above) will be written into guidance and law.

Life in the UK Test appointments are cancelled and rescheduled

Simply, this is an essential protective public health measure. The Government is looking for online provision that builds in anti-fraud measures – fraud being the reason that personal attendance and evidence of ID - is required at these exams.

The Government has stated that in relation to the absence limit of 180 days in a 12-month period it is “...considering further adjustments. These include a proposed concession to the continuous residence requirements for those trapped overseas...No one will be disadvantaged by the impact of COVID-19”. Guidance on calculating the continuous period has been revised and can be found here.

EU Settlement Scheme (EUSS) applications

EU and EEA nationals and their non-UK dependents have been applying for a year to convert their EU law status into UK law before the transitional arrangements end in 2021. COVID-19 is throwing up challenges here, too.

The Home Office has stopped accepting documents by mail and stated that all documents already received will be returned as quickly as possible. Applications can still be made online using the EU Exit ID Document check app., which is the Government’s preferred method.

Right to Work Checks

We received many queries from employers struggling to carry out right to work checks of documents in person, due to social distancing and restrictions on travel, whether for new starters or employees whose status had been due to expire. An inadequate right to work check can expose an employer to fines or even prosecution as well as loss of sponsorship, so this has caused much anxiety.

On 30th March the Government adjusted the requirements temporarily so that:

  • Checks of documents as well as their holder can now be carried out over video calls
  • Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals

but

  • Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents

The adjusted guidance makes clear that retrospective checks under the old arrangements will be expected when the crisis is over, and that checks carried out under the emergency measures must be recorded as such.

Then there is the question of start dates for migrants in the UK whose applications should have been decided but cannot be completed due to biometric lockdown. Where the status applied for is under Tier 2 or Tier 5 of the Points Based System, another special concession permits sponsors to allow employees to start work before their visa application has been decided if they:

  • have assigned a Certificate of Sponsorship and
  • the employee submitted their visa application before their current visa expired and
  • the role they are to be employed in is the same as the one for which their CoS was assigned

Sponsor’s reporting responsibilities start from the date of employment, not from the date that their application is granted. If the employee’s application is eventually refused, sponsors must terminate their employment.

Sponsor Licences – Sponsor duties in the COVID-19 Crisis

Licenced sponsors will be acutely aware of sponsor duties to report changes in circumstances affecting employees or their businesses, usually within 10 working days. Some changes, such as reductions in salary, are generally not permitted at all. As the crisis drives many unplanned alterations to working and contractual arrangements, the Government has announced some interim dispensations:

Working from home: Tier 2 and 5 sponsors are normally required to notify UKVI of a change of work location, but the Home Office states that “due to the current exceptional situation, we will not require sponsors to do so if working from home is directly related to the pandemic”.

Furloughed sponsored migrants: The Tier 2 & 5 Guidance for sponsors has been revised to allow salary reductions to 80% of the stated salary or to £2,500 per month, whichever is lower, to reflect the provisions of the Coronavirus Job Retention Scheme. However, it also states that all employees should be treated in the same way – lawyers have requested much needed clarification of that statement.

Submission sheets: where a non-excepted notification is being made, a sponsor may now submit a signed submission sheet electronically with electronic supporting evidence as needed where a hard copy with wet signature is ordinarily required.

Absence: In respect of sponsored migrants prevented from working due to sickness, the need to serve a period of quarantine or the inability to travel due to travel restrictions caused by coronavirus:

  • Sponsors do not need to report unauthorised absence;
  • Sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when a migrant employee is absent from work without pay for four weeks or more, as they ordinarily would.

Sponsor Licence Applications

Appendix A supporting documents, until now required by mail within five working days in original hard copy, are temporarily being accepted electronically, although the Home Office reserves its right to insist on originals in cases of doubt, with discretion applied on a case by case basis.

Quarantine

The Home Office refers to “self-isolation”, but let’s call it what it is. Since 8 June, the Government has been telling travellers: “When you arrive in the UK, you will not be allowed to leave the place you’re staying for the first 14 days you’re in the UK (known as ‘self-isolating’). This is because it can take up to 14 days for coronavirus symptoms to appear”.

There are circumstantial exemptions in a few cases, and anyone arriving via the Common Travel Area (ie Republic of Ireland) is exempt. The ‘air bridges’ mooted with France and some other countries did not materialise. Criticism that this is too late, too unworkable despite the £1,000 fine for non-compliance (as people travel to the place of isolation, risking infection) and economically damaging, and a legal challenge from two airlines, fuel speculation that the present quarantine will not long survive the 30 June review date.

The future of Immigration Policy

Back to 5th March and the Minister’s announcement – as it often does, the Home Office chose the day before the Easter bank holiday to publish its revised guidance on the “new” (ie repackaged) Points Based immigration system to take effect from 2021. In essence, this carries through the commitment to some liberalisation on skills and salary thresholds, and brings EEA nationals, who at the end of the Brexit transition period will no longer able to rely on EU free movement law, into view. At a time when UK unemployment is expected to soar, the Government still makes special provision for migrant employees and plans to loosen the access criteria for migrants within months. Its libertarian instincts may have been forced to one side by the immediate crisis, but protectionism is not written into the longer term picture. Contrast the 21 April tweet from Donald Trump, translated within days into US law: ‘In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!’

The agriculture sector was expected to be hard hit by Brexit’s ending of free movement, as low-paid seasonal workers from the EEA were shut out. Coronavirus came first – only for the Government to provide quarantined flights from Europe with a ready supply of workers. One midlands farmer impressed by the “unbeatable” work ethic of a new supply of furloughed British workers and students wondered if he had a better answer. But the Government had already reached for the migration lever.

Thanks in part to Coronavirus, Brexit may not prove to be the political answer to the immigration debate, after all.

As the national and global crisis continues, we expect further declarations by the UK Government about how it will manage the impact on immigration.

Our immigration team has extensive experience in managing crises and finding practical solutions where possible. We are staying fully abreast of developments and can speak with any clients concerned about managing the immigration impacts of COVID-19.

About the author

Matthew Davies

Partner - Head of Business Immigration

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

Matthew Davies

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

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