Pubished by Personnel Today 6 April 2020
Companies that employ overseas citizens with soon-to-expire visas may be feeling anxious about how they will be affected by the travel bans and other restrictions brought by the coronavirus. New government allowances and guidance could provide some relief but, as Jonathan Beech asks, do these go far enough?
As most European borders remain under lockdown to non-essential travel and the UK continues lockdown measures for Covid-19, many workers from overseas with expired or soon-to-expire visas are finding themselves stuck in the UK.
Meanwhile, HR teams are under pressure as they undergo redundancies, furloughing or short-time working – or conversely are undertaking recruitment sprees in sectors such as healthcare, food supply or home delivery and logistics where demand is booming under the pandemic. Until recently, both scenarios were unaided by right to work checks where existing law requires employers to see each employee’s original documents in person.
Now an interim reprieve by the government has resulted in new guidance and rules for overseas employees in the UK with expired or nearly expired visas along with right to work checks. But a number of unanswered questions remain.
For overseas workers where the clock is ticking, some crucial details need reporting using the latest guidelines to ensure they are not considered an “overstayer”. The Home Office has advised that visas can be extended to 31 May 2020 if people with visas that have just expired or are about to expire cannot leave the UK because of travel restrictions or self-isolation. Any affected individuals must contact the Coronavirus Immigration Team (CIT) via their dedicated email, CIH@homeoffice.gov.uk, to update their records with their full name, date of birth, nationality, previous reference number and a note to explain why they cannot return to their home country for example, if the country border has closed.
After the Home Office receives the request it will respond once the individual’s visa has been extended. It has also advised that these people will not be “regarded as an overstayer or be subject to enforcement action…or if there are delays in processing your application”.
While this is good news for overseas workers anxious about their stay and what might happen if they cannot comply, it is a reactive response to the current situation and not yet written into law. In effect, if there was a legal challenge by the Home Office to any individual when they did not believe their submitted reason was sufficient enough for an extension, there would not be a basis for a defence through the Immigration Rules.
The latest guidance also does not confirm who will cover the NHS Surcharge for the extra period – or whether they would be covered if any health problems occur during this time. As it is currently not written into law that no Biometric Residence Permits (BRP) will be issued, employers and employees should keep full records of when an email was sent to the Home Office to help protect against any illegal working penalty, or potentially any alleged over-stay. But anyone notifying the Home Office of their need to extend their visa should retain the same immigration conditions and restrictions as with their last or current visa.
Those wishing to remain in the UK for a longer period must submit a formal application in the normal way; thus on or before their current expiry date. This will be considered a pending application under section 3C of the Immigration Act 1971 – so they can remain legally in the UK under the same status. They should not use the email method above as a means of extending their stay.
Any worker should also check their current immigration category as these often require someone to leave the UK and then apply for a fresh visa before returning. While other measures include allowing some switching of immigration status within the UK, but these workers will still need to meet the immigration rules for any visa category being applied for.
Temporary amendments to right to work checks mean employers no longer need to see original documents in person but should use digital checks such as video calls. Workers can submit a scanned document to demonstrate their right to work (which, it should be noted is because of the Covid-19 measures in place), but these are still required, along with usual record-keeping. It is still an offence if any employer retains a worker who does not have legal UK immigration status that could result in penalties and fines.
Employers are advised that as long as adjusted checks are used according to the guidance and followed up by a full retrospective check within eight weeks of the measures ending, no enforcement action will be taken by the Home Office.
The government has also just issued new advice for tier 2, 4 and 5 sponsors that states that employers can temporarily reduce the pay of sponsored employees to 80% of salary or £2,500 per month, whichever is the lower, if part of a company-wide scheme to avoid redundancies and if all workers are treated the same.
While no one knows the end date to this extraordinary period, employees and employers should continue to check the gov.uk website for any further guidance as these exceptional circumstances are frequently resulting in instant and far-reaching changes that have yet to be legally tested – whether now or in the future.
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