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UKVI immigration updates essential reading – what you need to know

The UK Visas and Immigration (UKVI) office has updated its policies in relation to COVID-19. But many questions remain. While we chase down the answers on behalf of our clients, we tell you what you need to know right now.

For employees/individuals outside of the UK

Many of our clients are waiting for Tier 2 migrants whose visas have been granted to join them in the UK. These individuals will have been granted 30-day entry visas to enter the UK to collect their three or five-year visas on entry. These visa holders may, due to travel bans/restrictions, be unable to travel to the UK within the 30-day validity period on their vignette. While the ILPA (Immigration Lawyers Practitioners Association) has requested that these be automatically extended, the UKVI has not confirmed that it will be. It means these individuals will need to make further applications to extend the validity of these 30-day vignettes before they can enter the UK.

Some of those individuals mentioned above may have entered the UK and found that their BRP cards have not been produced and have felt the need to return to their home countries to be with their families. This leaves our clients potentially without evidence of a right to work going forward.  ILPA has asked that BRPs are retained by the receiving approved collection locations/post offices for more than the usual 30-day window. They have also recommended facilitating the collection of BRPs by other individuals as nominated by the visa holder e.g. legal representative. Again, we await the UKVI’s response on this.

Some individuals may not have applied for their visas from outside of the UK as yet. These individuals should be aware of TLS and VFS visa application centre closures and check locally on the VFS and TLS sites.

It should also be noted that IELTS tests may be unavailable as will results. Again, the IELTS website should be considered.  

Employees/individuals within the UK

There may be foreign nationals in the UK who are either unable to leave the UK or apply for an extension before the expiry of their leave due to switching rules and could inadvertently become overstayers.

The UKVI’s updated guidance of the 25 March confirms that:

  • No individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future;
  • A visa will be extended to 31 May 2020 if an individual cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19). Individuals must contact the coronavirus immigration team email to advise of their situation.

Helpfully, those who are in categories that would normally require them to leave the UK to apply from their home country will not be required to do so. Where individuals would normally be required to return to their country of residence to apply for a visa in a different category, they will now be able to apply from the UK to switch.

Certain individuals are required to register with the police within seven days of arrival in the UK or they could face consequences. Given that overseas visitors records offices have now closed, ILPA has asked that individuals can report electronically or have the requirement waived. We are yet to have clarification on this point.

Individuals who are extending their visas from within the UK are required to register biometrics in order for a valid application to be made and processed.  ILPA has suggested that the UKVI use previously captured biometric information in order to process applications where visa application centres are closed or where an individual is self-isolating.

We await the UKVI’s response. 

Considerations for Tier 2 sponsors

Many of our clients hold sponsor licences and will be conscious of ensuring compliance with their sponsor duties. This is how it is as it stands.

  • Tier 2 Migrants working from home

The UKVI confirms that it is aware that many Tier 2 migrants will now be required to work from home. Tiers 2 and 5 sponsors are normally required to notify the UKVI of such a change of circumstances. However, due to the current exceptional situation, they will not require sponsors to do so if working from home is directly related to the pandemic. However other changes must still be reported as usual.

 

  • Validity of certificates of sponsorship and resident labour market tests

Sponsors may be unable to assign the CoS within the relevant period or the migrant may be unable to apply within the relevant period and our clients may be concerned that the certificates will expire, or recruitment exercises may also expire. Resident labour market tests are only valid for six months. ILPA has recommended that during this period and given that sponsors are unable to complete their recruitment exercise that this limit is removed if the advert was first published from December 2019 onwards. Certificates of sponsorship must be used within three months of being granted/ assigned. Again ILPA has requested that this limit is suspended to allow sponsors to use this as and when travel restrictions are lifted. Again, we are yet to have clarity on these points.

 

  • Sponsor and migrant change in circumstances

Employers may need to change role outside of SOC code, reduce salary, reduce hours for unspecified period or put employees on a period of unpaid leave because of current circumstances. The current Home Office guidance currently allows unpaid leave for no more than four weeks. ILPA has recommended that this is extended to take into account other measures which sponsors are having to take in response to the coronavirus pandemic, such as allowing reduction of salary below the threshold; reduction of hours for a limited period; allowing workers to change roles and work under a different SOC Code while the business allocates resources to try to meet business needs during/as a result of the crisis; and suspending curtailment of leave where sponsorship is terminated to allow workers longer time to try and find alternative sponsorship.  Again, a response is pending. 

  • Cooling off period

Many individuals will need to return to their home country as a result of unexpected early termination of sponsorship even though may still be required once coronavirus issues reduced. This would normally result in a 12-month cooling off period before they could return on a Tier 2 visa. ILPA has asked for a suspension of the cooling off period for those impacted by the pandemic.  We are still awaiting a response. 

 

Right to Work checks

 

Given that many HR teams are working remotely, employers are unable to conduct a physical document check for an employee’s right to work.  We contacted the business helpdesk on behalf of a client last week and asked whether during this pandemic e-copies could be accepted.  They confirmed that this was not possible and in order to have a statutory excuse they would need to see originals. This has yet to change. 

 

UK nationals overseas

 

Employers should be aware that their UK/ Foreign nationals may find themselves in a situation whereby they are stuck outside of the UK. 

 

Tomorrow, we’ll have advice on what you can do, now.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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