Worried that furloughing or redundancy could affect your visa?

Jun 19, 2020

 

Due to Covid-19 job insecurity is even more pronounced for the UK’s foreign national workforce, many of whom need to keep their jobs to maintain their visa status and their right to remain in the UK.Furlough redundancy affect visa

If you are concerned about how the current economic climate could affect you or your family member’s visa, here is what you need to know.

Can I still apply to remain in the UK on the basis of family or private life if I have experienced a loss of income due to coronavirus?

  • Temporary concessions will allow you to use income for the period immediately before the loss of income due to COVID-19, provided the requirement was met for at least 6 months up to March 2020
  • If your salary has been cut as a result of being placed on furlough, the Home Office will take into account of your income as though you are earning 100% of your salary
  • If self-employed a loss of annual income due to coronavirus between 1 March 2020 and 31 July 2020 will generally be disregarded, along with the impact on employment income from the same period for future applications.

 

As a Tier 2 visa holder, can my employer cut my pay and place me on the government’s furlough scheme?

Furlough redundancy affect visa

Complied by Judit Adorjan

Once a Tier 2 worker is in the UK their employer can cut their salary in these circumstances.

When and how does a pay cut affect my visa?

Normally, when your salary falls below the minimum threshold or the ‘going rate’ for this visa route an employer must stop sponsorship at this stage, unless the reason for the pay cut was maternity, paternity or sick leave.

However, the government’s furlough scheme has introduced the following concessions:

Tier 2 sponsors can temporarily reduce the pay of sponsored workers without having to stop sponsorship if:

  • The pay is reduced to 80% of the salary recorded on the certificate of sponsorship or £2,500 per month, whichever is lower
  • the business has temporarily reduced or ceased trading
  • the reductions are part of a company-wide policy to avoid redundancies and in which all workers are treated the same
  • the pay cut is temporary, and the salary will return to its original level once these arrangements have ended.

Can I take on a second job?

You can take on a second job as long as your current sponsorship remains valid and the new role is:

    • Up to 20 hours maximum a week
    • Outside the normal working hours for which your Certificate of Sponsorship was assigned
    • In the same profession as your main job and at the same level or
    • A profession on the shortage occupation list
    • Unpaid voluntary work

Otherwise, you will need to apply for a new visa and your new employer will need to sponsor you by issuing a new certificate of sponsorship.

 

What happens if I am being made redundant?

Unfortunately, the Home Office is yet to announce any immigration concessions for sponsored workers who have lost or are at risk of losing their job due to the COVID-19 situation. In the current situation:

  • The employer must within 10 working days from the last day of your employment notify the Home Office that you have stopped work. The withdrawal of the sponsorship will include the reason you left your job and your last known address.
  • The Home Office must then initiate the process of visa curtailment (cancel or reduce the length of your visa).
    • The good news is there is no set time frame for this
    • During this period, you can continue to lawfully remain in the UK. The fact that you have stopped working does not, own its on, invalidate your status. The Home Office has to issue a curtailment notice, to cancel your visa.

What can I do to stop the Home Office curtailing my visa?

Once a curtailment notice has been issued there is no right of appeal against this decision.

The Home Office can however exercise discretion if the worker has a dependant under the age of 18. In this case you will receive a letter indicating they are considering you for curtailment and will ask you to put forward any reasons why you should be able to stay in the UK. This could include health risks of leaving the UK related to coronavirus.

It is important to seek professional advice if your visa has been curtailed and you believe the decision is incorrect or the Home Office has failed to exercise discretion.

What happens if my visa is curtailed?

If a decision is made to curtail your visa you will be issued with a curtailment notice which will shorten your permission to stay in the UK to 60 calendar days or less depending on the period left on your certificate of sponsorship. The curtailment letter will tell you the new expiry date of your visa, which also applies to any dependent family members.

Before the expiry of your visa you have the following options:

  • Find another job with an employer who has a Tier 2 (General) sponsor licence and make a Tier 2 General change of employment application to move employers
  • You can apply for a role outside your discipline, but if the role requires a certain level of experience, you must be able to show this
  • The role must be at RQF level 6 or above with a minimum salary of £30,000/annum, unless you meet one of the roles under the Shortage Occupation list and are paid at the going rate or you are under the age of 26 years, having spent less than 3 years on the Tier 2 General visa, which would allow you to be paid below the £30,000/annum threshold
  • If the role is not a shortage occupation it will need to be advertised in line with the Resident Labour Market Test
  • Make a new application to remain in the UK in a different visa category.

If you are unable to find a new Tier 2 General sponsor or move into a new visa route you and your dependent family members will be expected to leave the UK before the expiry of your visa or face potential removal.

Anyone with a visa expiring before 31 July 2020 is currently being given an automatic extension until the end of July. You are then expected to take all reasonable steps to leave the UK before this date if the COVID-19 travel restrictions are lifted.

 

Can I travel overseas once my role has been made redundant?

It is highly unadvisable. When entering the UK, an Immigration Officer often challenges a traveller to their intentions and whether they are still working for the same employer. Should you not be following the same conditions stated on your latest Biometric Residence Permit, you will in effect, not have valid entry clearance and could be denied entry.

Once you leave the UK or move to another visa category, you could be subject to a 12-months mandatory ‘cooling-off period’ before you can re-apply under the Tier 2 category.

 

Can I still apply for indefinite leave to remain (ILR) if I am furloughed or made redundant?

If your salary has recently been cut due to furloughing, this could have implications for an ILR application. The minimum salary threshold for a Tier 2 (General) ILR application is £35,800.

The Home Office has not confirmed whether it will exercise discretion for individuals whose salary is ordinarily above £35,800 but has been lowered temporarily due to furloughing.

As part of an ILR application, a Tier 2 sponsor is required to provide a letter for the applicant confirming ongoing employment. If the applicant is at risk of losing their job or have already lost their job the employer may be unwilling or unable to provide this letter.

Although, there is no set timeframe for the Home Office to issue a curtailment notice for sponsored workers who have been made redundant it is best not to have more than a 2-3 month gap in employment as this will raise questions at the ILR stage.

 

As a Tier 5 visa holder does the above apply to me?

The above measures will apply to you if you are a Tier 5 Temporary worker. The ability for you to change employers or move into a different immigration category will depend on the Tier 5 subcategory you are in.

Those on a Tier 5 Youth Mobility Scheme are unaffected by furloughing or redundancy as their status is not linked to their employment. They are on a 2-year visa allowing them to take up any employment they choose.

Source: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

For more information, contact Migrate UK tel 01235 841 568

Furlough redundancy affect visa

Karen Kaur and Jonathan Beech