Webinar CV19 Disruption: Immigration Issues for UK Employers - 8 April 2020 - Squire Patton Boggs

Webinar CV19 Disruption:
Immigration Issues for UK Employers
8 April 2020

CV19 Disruption: Immigration Issues

               Annabel Mace                  Supinder Sian
                     Partner                       Partner
             Labour and Employment         Labour and Employment

                 T +44 207 655 1487            T +44 207 655 1741
            E annabel.mace@squirepb.com   E supinder.sian@squirepb.com

squirepattonboggs.com                                                    2

CV19 Disruption: Immigration Issues

                                        Employees
              Employees
                                         trying to
              with visas
                                         get visas
                             CV19
                           Challenges
               Sponsor                    Right to
              compliance                work checks

squirepattonboggs.com                                 3

CV19 Disruption: Immigration Issues

 Employees in the UK whose visas are expiring soon

  Current guidance only covers those in the UK with visas expiring between 24
   January 2020 and 31 May 2020 for now:
     visa will be extended to 31 May 2020 on same conditions if an individual cannot
       leave the UK because of travel restrictions or self-isolation related to COVID-19

     individual must contact the Coronavirus Immigration Team to obtain confirmation of
       extension.

  Employer should keep paper trail of employee’s contact with CIT and any
   response confirming extended visa.

  Currently no indication that the employer would also need to submit an
   Employer Checking Service request to obtain an extended statutory excuse.

squirepattonboggs.com                                                                      4

CV19 Disruption: Immigration Issues

Switching to another visa from within the UK instead of from abroad?

  If a UK visa is expiring before 31 May 2020 and the holder would ordinarily
   need to leave the UK to make a new application from their home country…

  …as long as they qualify for a Tier 2 (General) visa, they will be able to apply
   online from within the UK until 31 May 2020.

  This could include those with visas under the following categories:
     Tier 5 Youth Mobility or Tier 5 GAE

     Tier 2 Dependant

     Tier 2 (ICT) with salary of £159,600 or more

     Standard visitor visa

squirepattonboggs.com                                                                 5

CV19 Disruption: Immigration Issues

 What about employees outside the UK recently issued with visas
 or trying to obtain them? (1)

  All of the UK’s Visa Application Centres are currently closed.
     Europe, Africa and parts of the Middle East visit: uk.tlscontact.com

     All other countries visit: vfsglobal.co.uk

  Is there any point in submitting an on-line application now?

  Applicants with pending applications or approved visas waiting for return of
   passports with 30 day entry visas…

squirepattonboggs.com                                                             6

CV19 Disruption: Immigration Issues

 What about employees outside the UK recently issued with visas
 or trying to obtain them? (2)

  If an employee has been issued with a 30-day entry visa vignette and cannot
   enter the UK within that period, there are informal indications that leeway will
   be given when travel restrictions are lifted.

  ‘Non-visa nationals’ may be able to enter the UK using e-gates after the 30-
   day window without too much difficulty and collect their BRP as usual.

  ‘Visa nationals’ may be required to apply for a new entry visa before
   travelling to the UK.

squirepattonboggs.com                                                                 7

CV19 Disruption: Immigration Issues

 What about employees outside the UK recently issued with visas
 or trying to obtain them? (3)

  If you have already assigned an unrestricted or restricted Certificate of
   Sponsorship (CoS or RCoS) but the employee is unable to apply for a visa
   within the 3 month validity as a result of coronavirus…

  … Home Office is advising it ‘will not automatically refuse such cases … we
   will consider this on a case by case basis’.

  Try to ensure CoS are assigned within 6 months of RLMT advertisements to
   avoid having to re-advertise, even if not currently possible to submit visa
   application.

squirepattonboggs.com                                                            8

CV19 Disruption: Immigration Issues

 Current sponsor guidance on COVID-19-related absences:

  'No enforcement action against sponsors who continue to sponsor employees
   despite absences due to coronavirus.

  You do not need to report employee absences related to coronavirus including
   illness, their need to isolate or inability to travel due to travel restrictions.

  You do not need to withdraw sponsorship if, because of coronavirus, an
   employee is absent from work without pay for more than 4 weeks.

  No need to notify if you are sponsoring employees who are working from home
   due to coronavirus.

  Other changes to their working arrangements must still be reported as usual.’

squirepattonboggs.com                                                              9

CV19 Disruption: Immigration Issues

 Current sponsor guidance on salary reductions for sponsored
 employees because a business has ‘temporarily reduced or
 ceased trading’ due to COVID-19:

  ‘You can temporarily reduce the pay of your sponsored employees to 80% of
   their salary or £2,500 per month, whichever is the lower.

  Any reductions must be part of a company-wide policy to avoid redundancies
   and in which all workers are treated the same.

  These reductions must be temporary, and the employee’s pay must return to
   at least previous levels once these arrangements have ended.’

  SMS notifications still required, for now.

  No mention of the Coronavirus Job Retention Scheme or furlough…

squirepattonboggs.com                                                          10

CV19 Disruption: Immigration Issues

 Can we delay the work start date of a newly sponsored employee?

  You may have employees stuck abroad with newly issued UK visas but
   unable to travel to the UK to take up their role.

  Home Office has confirmed that delaying the start date beyond 28 days is
   allowed.

  Other issues to consider:
     can they work remotely for you from outside the UK?

     obtaining employee’s ‘consent’ to delayed start date or unpaid leave

     we still recommend reporting delayed start dates.

squirepattonboggs.com                                                         11

CV19 Disruption: Immigration Issues

 How quickly do sponsored employees who are made redundant
 have to leave the UK?

  Sponsor duty to report end of sponsorship within 10 working days of end of
   employment.

  Home Office will usually take action to ‘curtail’ (shorten) leave to 60 days
   from the date this is notified to the employee.

  Once sponsorship ends, the employee can remain in the UK until their leave
   is curtailed (if travel restrictions continue, this period may be extended).

  The employee cannot work for another UK employer until he obtains new
   sponsorship or obtains some other form of right to work.

squirepattonboggs.com                                                             12

CV19 Disruption: Immigration Issues

 Can we furlough UK employees on overseas assignments or
 temporarily reduce their salaries?

  HMRC guidance on the Job Retention Scheme refers to employees
   qualifying if they ‘were on your PAYE payroll on or before 28 February 2020’
   but those working abroad may not qualify if they are on an NT tax code.

  Employees on overseas assignments may not qualify for any local furlough
   equivalent either.

  If you are proposing to reduce salaries for assignees outside the UK, ensure
   that is permitted under local employment law and is within the scope of the
   employee’s visa.

squirepattonboggs.com                                                             13

CV19 Disruption: Immigration Issues

 Temporary adjustments to right-to-work checks

  If you cannot use the online right to work service:
     Ask the worker to submit a scanned copy or a photo of their original documents

     Check the identity of employee and original document using a video call

     Endorse copy with “adjusted check undertaken on [insert date] due to COVID-19”

  After the COVID-19 measures have ended, employers will then have eight
   weeks to carry out retrospective checks on existing employees who started
   work while the adjustments were in place using the usual right to work
   checking process.

squirepattonboggs.com                                                                  14

CV19 Disruption: Immigration Issues

 What if an employee loses the right to work whilst absent because
 of COVID-19?

  Query whether they qualify for a visa extension under the Home Office’s
   COVID-19 measures.

  Employers will still be at risk of a civil penalty for employing someone without
   the right to work not withstanding practical challenges of COVID-19.

  Important to still carry out follow-up checks following guidance on temporary
   adjustments for right to work checks.

  Continue to adhere to principles of reasonableness if dismissal action is
   needed e.g. fair hearing, appeal etc. even though in-person meetings will not
   possible.

squirepattonboggs.com                                                                 15

CV19 Disruption: Immigration Issues

 Other issues to consider…

  Requirement to submit original signed documents to the Home Office –
   instead try scanning and emailing to BusinessHelpdesk@homeoffice.gov.uk
   SCOC@homeoffice.gov.uk or SponsorLicensingReplies@homeoffice.gov.uk

  Requirement for continuous residence in the UK for those hoping to acquire
   indefinite leave to remain or settled status?

  Will those outside the UK when their Tier 2 visa expires still be hit by the 12
   month cooling-off period?

squirepattonboggs.com                                                                16

CV19 Disruption: Global Migration Tracker
 Provides easy access to reliable sources of information in the form of links to
  relevant webpages of governments, national immigration departments and
  official visa application centres around the world.
 Email globalmigration@squirepb.com with your name and email address.

squirepattonboggs.com                                                               17

Useful Links:

•   https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-tier-2-4-and-5-
    sponsors

•   https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-
    applicants-and-temporary-uk-residents

•   https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

•   https://uk.tlscontact.com/

•   https://www.vfsglobal.co.uk/en

•   CIH@homeoffice.gov.uk.

squirepattonboggs.com                                                             18

Global Coverage

Abu Dhabi      Manchester      Africa                      Office locations
Atlanta        Miami           Brazil                      Regional desks and strategic alliances
Beijing        Milan           Caribbean/Central America
Berlin         Moscow          India
Birmingham     New Jersey      Israel
Böblingen      New York        Mexico
Bratislava     Palo Alto       Turkey
Brussels       Paris           Ukraine
Cincinnati     Perth
Cleveland      Phoenix
Columbus       Prague
Dallas         Riyadh
Darwin         San Francisco
Denver         Santo Domingo
Doha           Seoul
Dubai          Shanghai
Frankfurt      Singapore
Hong Kong      Sydney
Houston        Tampa
Leeds          Tokyo
London         Warsaw
Los Angeles    Washington DC
Madrid

squirepattonboggs.com                                                                               19

Webinar CV19 Disruption:
Immigration Issues for UK Employers
8 April 2020