The deepening economic crisis caused by the COVID-19 pandemic means that many employers are considering large scale redundancies, layoffs or furloughing staff.
What impact does this have on migrant workers, especially for employees on work permits? The position for visa holders is, of course, made even more complicated because of the current restrictions on international travel.
Redundancies of Tier 2 workers
Where a migrant worker is in the UK on a “work permit” i.e. a Certificate of Sponsorship assigned by their employer under Tier 2 of the UK's points-based immigration system, their ability to remain in the UK depends on their continued employment in a specific role with a specific employer.
If the migrant loses their job for any reason, their employer has an obligation to tell UK Visas and Immigration within 10 working days of the last day of their employment. The individual’s leave to remain will then be curtailed (cut short) to 60 days. Individuals must either find a new employer willing to sponsor them within this time period, or leave the country. This means that when a sponsored migrant is made redundant they not only lose their income, but also potentially their right to remain in the UK.
From the employer’s perspective, where they are carrying out a redundancy exercise which includes sponsored workers, they will need to make sure that they have complied with all of the normal employment law requirements before terminating their employment. In addition, they will need to think carefully about their visa status, particularly in relation to any offers of suitable alternative employment. Individuals will only be able to take up an alternative role under the terms of their current visa where it remains within the same Standard Occupational Classification Code (SOC Code). If the new role would take them outside of their current SOC Code, a new visa will be required which meets all of the relevant criteria (including, if appropriate, the Resident Labour Market Test), before the employee is able to start in the new role.
Where an individual is made redundant and has their visa is curtailed, and does not leave the UK or find a new sponsor within the 60 day period, they will become an overstayer. This will result in adverse implications for future visa applications to come to the UK; they could even face deportation.
Layoffs and furloughing
Given the widespread shutdown of great swathes of the UK’s economy, significant numbers of employers are exploring other ways of cutting costs, including layoffs and furloughing staff under the Government’s new Coronavirus Job Retention Scheme (CJRS). Both of these approaches are potentially problematic where sponsored workers are involved.
In some cases, employers may have a contractual power to lay off employees i.e. send them home for a period with no pay (or, in some cases, reduced pay). Although an employer might have the legal ability to lay off a Tier 2 sponsored employee, they still need to be mindful of their ongoing sponsorship requirements.
The Guidance for Sponsors states that whenever a sponsored employee is absent from work without pay for 4 weeks, sponsorship automatically comes to an end. This triggers the requirement to report this fact and curtailment of the individual’s visa (as explained above). Helpfully, the Home Office has now issued specific guidance for sponsors on this point and has confirmed that sponsors do not currently have to withdraw sponsorship in these circumstances whilst the coronavirus crisis remains ongoing.
The position with regards to furloughing is less clear; nothing in the CJRS Guidance issued by the Government expressly deals with how is applies to sponsored migrants. I see no reason why an employer could not place a sponsored migrant on furlough in the same way as any other employee. Indeed, if an employer failed to do so because of their employee’s visa status/nationality, this could amount to unlawful discriminatory treatment.
However, employers need to be careful not to breach the sponsorship requirements when furloughing sponsored staff.
The CJRS provides for PAYE workers/employees to receive 80% of their salary, or £2,500 per month, whichever is lower. The balance can be topped up by employers, but they are not under any obligation to do so.
Where employers don’t top up salaries, this will be a reduction in pay for sponsored workers, which must be reported to the Home Office using the Sponsor Management System. In some cases, this salary reduction might take the sponsored worker below the minimum salary levels permitted for sponsorship. In normal circumstances this would result in sponsorship automatically coming to an end (and their visa being curtailed).
Until official Guidance from the Home Office is received on this point, employers should think carefully about maintaining the balance of sponsored workers’ pay, or at least making sure it is topped up to the minimum salary levels to avoid their sponsorship automatically coming to an end, and their visa being curtailed.
Kevin Foster MP, Minister for Future Borders and Immigration made a statement in the House of Commons on 23 March 20202 that:
“We are very clear that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control…We are looking at further measures…to ensure that no one is penalised because they followed the advice and did what they could to protect our NHS and save lives.”
Whilst sponsors may try and rely on this statement when reducing pay as a result of furlough, this carries with it a significant level of risk, unless and until official Guidance on the point is issued.
As a further point, employers need to be very careful when dealing with sponsored migrants in the Tier 2 Intra Company Transfer category; if these sponsored workers are not being paid by the UK company, and are not on their PAYE payroll, employers will not be able to make a claim in respect of their wage costs under the CRJS.
Working from home, social distancing and isolation
Another issue for employers is that they may be requiring their sponsored to work from home, in line with Government guidance regarding social distancing and/or shielding. Normally, this would be another change in circumstances that sponsors would have to report on the Sponsor Management System. Helpfully, the Home Office has issued express Guidance for Sponsors that they do not need to report this change.
The Home Office has also specifically confirmed that sponsors do not need to report employee absences related to coronavirus, whether this is as a result of illness, isolation or inability to travel due to travel restrictions.
Anecdotal feedback on the Home Office response to specific enquiries, appears to indicate that although they remain of the view that sponsors should try and comply with their duties as normal, where this is not possible due to the pandemic, they will not penalise them if the sponsor can show they have taken a reasonable and pragmatic in all the circumstances.
Problems for visa holders due to travel restrictions
As explained above, where someone’s visa is due to expire, or has been curtailed, they must leave the country before the expiration date to avoid becoming an overstayer. Of course, in the current climate, simply leaving the UK and returning “home” is not that easy due to the large scale international travel restrictions.
Initial Government guidance for visa holders facing this situation initially focused on Chinese citizens who were stranded in the UK at the start of the corona virus crisis. Helpfully, the Guidance was updated on 24 March to cover other nationalities.
The current Guidance provides that any visa holder in the UK whose leave expires between 24 January 2020 and 31 May 2020 will have their visas automatically extended to 31 May 2020 if they cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).
The guidance requires affected individuals to contact the Coronavirus Immigration Team to update their records if their visa is expiring and provide the following details:
- Full name (including any middle names)
- Date of birth
- Nationality
- Previous visa reference number
- Why they cannot go back to their home country, for example if the border has closed.
The government have also released an additional fact sheet which adds that ‘individuals will be advised that UKVI have noted their details; they will not be subject to enforcement action; and this period will not be held against them in future applications.’
However, despite this blanket statement, employers and visa holders still need to be cautious. Simply updating the Home Office, and obtaining their reassurances, does not give a clear legal basis for a visa extension. Wherever possible, individuals should make extension applications before their current visas expire to try and preserve their legal status. Individuals should only rely on these statements, if they have no alternative.
Extension Applications
In the current crisis, the Home Office has also announced that the normal requirements around “switching” will be relaxed.
Under the immigration rules, only certain types of visa applications, extensions and changing between visa categories can be made from within the UK; otherwise individuals have to leave the UK to make a new application from their “home country”. The new Guidance states that these applications will now be permitted until 31 May 2020 (although individuals will still have to meet all the usual visa requirements for these applications).
Unhelpfully, however, the accompanying press release gave the example of someone wanting to change from a Tier 4 student visa to a Tier 2 sponsored visa. This is particularly unhelpful, given that this application was permitted in the UK, even before the corona virus crisis.
Next steps
Our team of experienced employment lawyers and business immigration specialists regularly help employers navigate the immigration system, compliance with their sponsor obligations and the overlapping immigration and employment law requirements, so if you have any queries please get in touch.
