22nd May 2020
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Employers up and down the country have been grappling with the COVID-19 pandemic and the impact that the resulting Government imposed lock-down has had on their workforce for a number of weeks now. Furloughing, laying-off and requiring staff to work from home have already become widespread, and many employers have now been upskilled in the correct employment law processes to follow before implementing such changes. As the economic downturn caused by the current crisis continues to tighten its grip across the UK, many employers are now being forced to consider more permanent workforce reduction measures to reflect the potential continuation of decreased business demand, including redundancies.
However, where employees are sponsored migrant workers working in the UK under Tier 2 or Tier 5 visas, there is an additional layer of legal compliance in the form of immigration considerations which employers may be less aware of. In this article, we consider the specific immigration considerations which need to be borne in mind when dealing with sponsored migrant workers in the current COVID-19 crisis, including:
We will also consider temporary changes to right to work checks which have been introduced during the COVID-19 crisis, and the new points based immigration system.
Where an employer sponsors a migrant worker to work in the UK, that sponsorship carries with it onerous monitoring and record keeping obligations in relation to the migrant worker, as well as obligations to notify the Home Office in the event of certain circumstances changing. Under normal circumstances, any failure to comply with these obligations can carry significant consequences, including the possible revocation of the sponsor licence pursuant to which migrant workers are sponsored.
For the migrant worker, their right to live and work in the UK is generally contingent upon their continued employment on the terms under which they were first sponsored. Therefore any changes to the migrant worker’s role during the current COVID-19 pandemic have the potential to impact on the continued sponsorship of the individual.
Employers with an existing contractual right to lay-off have been making use of these provisions as a means of managing costs during these difficult times, and those without such a right have been seeking the agreement of their workforce to temporary lay-offs both under the Government’s Coronavirus Job Retention Scheme (“CJRS”) and otherwise. Under the CJRS, employees can agree in writing to be “furloughed” (i.e. not required to work but remain employed) in return for 80% of their salary, up to a maximum of £2,500 per month, which the Government will repay to their employer. The employer has the option to top-up the salary to full pay, but is not required to do so, and any top up will not be recoverable under the CJRS.
The Government’s guidance on the CJRS makes it clear that individuals who are working in the UK under visas are eligible to be furloughed and employers are entitled to have their salary reimbursed under the scheme (subject to compliance with the terms of the scheme). However, employers should be cognisant of the fact that the CJRS only applies to employees who are covered under the employer’s PAYE system. Therefore the salary of any migrant workers working under a Tier 2 (Intra-Company Transfer) visa whose salaries are paid overseas will not be recoverable by the employer under the CJRS. Further, any decision to furlough individuals on the grounds of their immigration status is likely to be discriminatory.
Under normal circumstances, any changes to the salary of sponsored migrants which takes the salary level below £30,000 for a Tier 2 (General) visa or £41,500 for a Tier 2 (Intra-Company Transfer) visa, or the threshold in the relevant SOC Code applicable to the role, whichever is higher, would jeopardise the continued sponsorship of the individual. However, the Home Office has issued guidance which states that sponsors can temporarily reduce the pay of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower, if the reduction is due to the COVID-19 outbreak. The reduction must be part of a company-wide policy to avoid redundancies and must be temporary. The employer should make a written record of the reason for the reduction in case evidence subsequently needs to be presented to the Home Office, and the sponsored worker’s pay must return to its previous level when the company-wide arrangements end.
Although the Home Office’s concession on salary reductions appears to be intended to cover sponsored workers who are furloughed under the CJRS, the guidance does not refer to furloughing specifically, therefore it could also cover sponsored workers who are still working and who agree to reduce their working hours and salary by up to 20%, or those who agree to a pay cut without reducing their hours, in response to business needs.
Further, although the Home Office has not issued specific guidance on whether any salary reduction applicable to a migrant worker who was granted leave under the Tier 2 (General) route as a “high earner” (i.e. with an annual salary of £159,600 or more) which takes them below the “high earner” threshold will require a new application for leave as would be the case under normal circumstances, it is expected that similar concessions will be made.
Where employers are laying-off workers without pay (in order to avoid redundancies), the general position is that an employer must stop sponsoring a migrant who is absent from work without pay for 4 weeks or more in total in any calendar year (unless the leave is for one of a specified number of reasons). The Home Office has, however, issued specific guidance which confirms that sponsors are not required to withdraw sponsorship where migrants are absent without pay for 4 weeks or more if the absence is related to the COVID-19 crisis. Further, absences related to COVID-19 do not need to be reported to the Home Office in the normal manner. In each case, the employer should keep a written record confirming that the time away from work has arisen as a result of COVID-19.
Changes to salary or working hours should still be notified to the Home Office via the on-line sponsor management system within 10 working days of the change, as per normal notification requirements.
Although under normal circumstances a change to the migrant worker’s place of work would be a reportable change of circumstances, the Home Office has issued guidance to confirm that employers do not need to report a change to a migrant worker’s workplace to their home address for the purposes of complying with Government guidance on social distancing. Clearly if a migrant worker continues to work from home after the COVID-19 crisis is over (for example as part of an employer’s increased use of agile working), then a report would be required. Further, employers may need to take extra steps to monitor attendance at work for migrant workers who are working from home in the event that a reportable situation does arise (e.g. an absence from work which is not related to COVID-19).
When conducting redundancy exercises, employers should be aware that there may be specific considerations and limitations around their treatment of migrant workers. For example, if the fact that an individual is a migrant worker influences any decision to make them redundant, this could give rise to an unfair dismissal and race/nationality discrimination claim. When making offers of alternative employment as part of the redundancy process, the alternative role would need to be within the same SOC Code as the role for which the migrant was initially sponsored, and at the requisite salary level, otherwise the individual will require a new visa and the employer may be required to undertake a new resident labour market test before offering the role, if applicable. However, even where an employer is confident that an alternative role requiring a new visa would not meet the requirements of fresh sponsorship, they would be well advised to tread very carefully before deciding not to offer the role to the migrant to mitigate against the risk of an unfair dismissal or discrimination claim, and bespoke legal advice should be taken before any decisions are made.
Sponsors of migrant workers will no doubt be aware that if they terminate the employment of a migrant worker earlier than the end date shown on the certificate of sponsorship, they are under a duty to report this to the Home Office within 10 working days via the on-line sponsor management system. This includes where a migrant worker is made redundant as a result of a down-turn in work caused by the COVID-19 outbreak.
For the individual, the redundancy would result in their leave to remain in the UK being curtailed to 60 days. If they have not found alternative employment with another sponsor (or found another lawful basis for remaining in the UK) by the end of this period, they will be required to leave the UK.
Where a sponsored worker’s visa is due to expire, an employer will normally work with the migrant to secure an extension of the visa, or look to terminate their employment if their services are no longer required. However, in light of the current COVD-19 crisis, the Home Office has granted visa holders whose visa expires between 24 January 2020 and 31 May 2020 (and who were not otherwise intending to apply to extend their leave) an extension to their visa until 31 May 2020 if they cannot leave the UK because of travel restrictions or self-isolation requirements. Although there have not been any formal announcements at the time of writing, it is likely that this concession will be extended beyond 31 May if the current situation continues. In order to benefit from this extension, affected individuals are required to contact the COVID-19 Immigration Team and complete a COVID-19 UK Visas & Immigration form to provide certain information, including their name, date of birth, visa reference number and the reason why they intend to remain in the UK.
However, those migrant workers who do require a continued presence in the UK when their current visa expires will still need to make a visa extension application (or other application to remain lawfully in the UK beyond the date of their current visa), and should make this application on-line before their current visa expires in the normal manner. Those whose visa expires between 24 January and 31 May who are looking to switch into a different long-term visa category and who would otherwise need to make the application from outside the UK are currently permitted to make in-county applications. However, it is not currently possible to progress applications to the next stage, which requires an appointment to submit biometric information and upload supporting documents, as all UK Visa and Citizenship Application Centres are temporarily closed due to the COVID-19 outbreak. In addition, the Government’s proposals to introduce a 14 day quarantine period for those coming into the UK will impact on the ability of migrant workers arriving from overseas to start work (although there is currently no date for when this proposal will come into effect). Those wishing to use priority or super priority services for a faster decision on their application should be aware that these services are also temporarily suspended. If their visa is due to expire imminently, they should submit their application and seek to add a priority or super priority service at a later date once the services are back up and running.
The Home Office has also introduced free automatic one year visa extensions for frontline health and social care workers working for the NHS and in the independent sector. The provisions cover workers and their family members whose visas expire between 31 March 2020 and 30 September 2020. In addition, the Home Office has confirmed that the family members of frontline workers who die from COVID-19 will be offered immediate indefinite leave to remain.
Another challenge employers are currently facing is in relation to carrying out right to work checks for new recruits or those requiring follow-up checks while their workforce works from home, given that the normal process involves obtaining physical identity documents and verifying these during a meeting with individuals in person. Without such checks being carried out in a legally compliant manner, employers have no statutory excuse in the event that they are found to be employing illegal workers. The Home Office has confirmed that from 30 March 2020, right to work checks can temporarily be carried out over video calls (e.g. Zoom, Skype or Facetime) with the individual submitting scanned copies or photos of their original documents. The written record of such a check should state that it is an adjusted check due to COVID-19. If an individual has a biometric residence permit, biometric residence card or status under the EU Settlement Scheme, then the employer can use the Home Office’s online right to work checking service provided that the individual has given permission for their details to be viewed. For individuals who are unable to provide the required documents, the Home Office’s employer checking service is still operational and a “positive verification notice” will provide a statutory excuse against liability for a civil penalty or criminal sanctions for employing a worker illegally for 6 months.
The Home Office have confirmed that once the temporary COVID-19 measures end, employers will have eight weeks to carry out retrospective right to work checks in the usual way on employees who commenced employment or required a follow-up check while these measures were in place. The Home Office will give notice in due course of when the measures will end. On the copy of any documents reviewed as part of the retrospective check, the employer should note: “The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”. Copies of both checks should then be held on file.
In addition to factoring in the above when dealing with migrant workers during the current crisis, employers should not forget the Government’s proposed introduction of a new points based immigration system from 1 January 2021 which will apply to EU and non-EU nationals alike. At the time of writing, there have been no indications that the proposals to extend the requirement for sponsorship to EU nationals (who currently have the right to work without being sponsored) from 1 January 2021 will be postponed as a result of the global pandemic. The Immigration Bill which sets out the legal framework for these changes passed its second reading in the House of Commons on 18 May 2020, and looks set to be on course to become law. Therefore employers who do not currently have a sponsor licence because they have only needed to recruit from within the UK and EU in the past are being urged to make applications for a licence as soon as possible, to ensure they are in a position to sponsor individuals from the EU from 1 January if required. Further, the requirement for EU nationals to register under the EU settlement scheme in order to gain longer-term rights to remain living and working in the UK remain in place.
We will shortly be issuing more detailed guidance on the new points based system and the impending changes to the recruitment of nationals from the EU from 1 January 2021.
At Walker Morris, we have a dedicated Business Immigration team which can assist with any of the issues raised above. Please do not hesitate to get in touch with your usual contact or one of the individuals below for further advice.
Chairman of the LLP