UK: The Coronavirus and Impact on Immigration System

The spread of the Coronavirus COVID-19 disease has changed life as we know it not just in the UK but across Europe and the world. The UK government has responded to this deadly and invisible enemy by implementing unprecedented laws and measures to help protect lives and to stop the devastation of the economy. This includes introducing new immigration rules and the relaxing of existing requirements to help UK business and migrant workers navigate their way through this tragedy. Set out below are key changes to laws and practices.

The Coronavirus Job Retention Scheme and sponsored workers

The government have confirmed in its guidance on 3 April 2020 that if they cannot pay the salaries of sponsored employees because of a temporary reduction of trading, or closure, then it can reduce their pay to 80% of their salary or £2,500 per month, whichever is the lower under the job retention scheme. They are not permitted to work during any period of furlough which is permitted in this situation.

Any reduction must be part of a company-wide policy to avoid redundancies in which all workers are treated the same way. This must be a temporary arrangement and the employee’s salary must be increased at the end of the arrangement to its normal level. The salary may be varied or alternatively the employer may dismiss the sponsored employee, see below. It appears that the scheme allows for Tier 2 sponsored workers to be paid less than the salary rate for their particular sponsored role under the immigration rules during a period of furlough.

Sponsored employees should not be selected for furlough for unfair and/or discriminatory reasons, for example because they are not a UK national or only present in the UK for a limited time.

Sponsors will still need to report the situation and the reduction in salary via its SMS system. Reports should be made within 10 days where possible.

The Coronavirus Job Retention Scheme is not defined as ‘public funds’ in the Immigration funds (Part 6 ‘Interpretation’) and therefore sponsored workers who are placed on furlough will not be in breach of their conditions of stay. However, it is important that they do not also claim any benefits which are defined as public funds.

Working from Home

Sponsored workers can work from home if it is directly related to the pandemic. Home working in these circumstances does not need to be reported to the UKVI.

Reducing Pay and hours

A sponsor has always been permitted to vary a migrant’s work hours and pay subject to the new hours and pay rate meeting the guidelines and threshold for the particular role. A sponsor must report any such change via the SMS system to the UKVI within 10 days. At the current time and in the absence of further clarification, we suggest employers should keep any such changes within the hours and pay thresholds. New guidance is expected so please do contact us with your query directly.

If a sponsor wishes to reduce the salary for a person who was granted a Tier 2 General visa based on the fact that their salary was in excess of £159,600 in which case a Resident Labour Market Test was not carried out, then it would ordinarily have to make a new application and carry out a Resident Labour Market Test. Further clarification has been sought on this point given this unique situation so please do contact us directly in relation to this situation.

Normal employment laws and practices apply and therefore unless an employer has an express contractual right under the employee’s contract to make such material changes, which could amount to a fundamental breach of the implied term of trust and confidence in any event, it should where possible try to obtain the consent to any such variation of contract. Legal advice should be sought where changing terms and conditions of employment.

Absences due to the Coronavirus pandemic

The Government has stated in its guidance for Tier 2, 4 and 5 migrants that it will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus. Sponsors do not need to report student or employee absences related to coronavirus including absences due to illness, their need to isolate or inability to travel due to travel restrictions. It specifically states that sponsors do not need to withdraw sponsorship if, because of coronavirus:

• a student is unable to attend for more than 60 days
• an employee is absent from work without pay for more than 4 weeks

Employers should treat any absence due to the Coronavirus as authorised leave. We recommend that sponsors keep evidence in support of the authorised absence such as doctor’s notes, email exchanges, and letters.

Sponsors have always been required to keep a ‘record of migrant’s absences’ as referred to in Appendix D of the Sponsor Guidance.

Unpaid Leave

In addition to annual leave, sponsored workers have always been able to take unpaid leave as set out in paragraph 26.26 of the Sponsor Guidance. It is limited to 19 working unpaid days but a sponsor should stop sponsoring a Tier 2 or 5 worker who is absent from work without pay for four weeks or more in total in any calendar year save for where the absence is connected to coronavirus (as above) or the unpaid absence is for one or more of the following reasons:

• statutory maternity leave
• statutory paternity leave
• statutory parental leave
• statutory shared parental leave
• statutory adoption leave
• sick leave
• assisting with a national or international humanitarian or environmental crisis overseas, provided you agreed to the absence for that purpose
• taking part in strike action as part of a legally organised industrial action.

The Home Office has confirmed that it is relaxing its requirement for sponsors to stop sponsoring an employee where he/she takes more than 19 working days unpaid leave for now. It has stated that ‘sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when an employee is absent from work without pay for four weeks or more’.

Right to work checks

The Home Office has stated that employers must still carry out checks on the immigration status of employees to see if they have the legal right to work in the UK.

But those checks can now be carried out remotely. Latest guidance says that employees can submit a copy of their passport or ID rather than the original, and verify it by showing the employer the original on a video call.

The process for conducting a right to work check during the pandemic is as follows:

• Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
• Arrange a video call with them – ask them to show you the original documents on camera and check them against the digital copy of the documents.
• Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
• If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call with the applicant’s permission.

For further information, please contact:

Helen Murphie, Legal Director

ebl miller rosenfalck, London

e: hm@millerrosenfalck.com 

t: +44 20 7553 6002

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice specific to your situation, and should not be relied upon. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.

© Miller Rosenfalck LLP, 16 April 2020

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