In this update we consider the most recent Home Office guidance, issues that are not yet resolved, and answer some questions frequently being asked by employers.
1. Can sponsored migrant employees be furloughed?
Tier 2 sponsorship comes with minimum salary thresholds and obligations on a sponsor to report changes in a migrant’s role to the Home Office. Although the Tier 2 General minimum salary threshold is £30,000, Tier 2 Migrants must also meet salary thresholds for their specific job types, which are often higher than this. Where an employer is not topping up payment beyond 80% of salary under the Job Retention Scheme, the maximum payment a furloughed employee can receive is £2,500 per month (equivalent to £30,000 pa), even where their actual salary is much higher than this. Meeting minimum salary threshold whilst on furlough leave will therefore not be achievable for many.
Notwithstanding the above, the Home Office is yet to provide clarity on how being placed on furlough leave will affect sponsored workers. Usually, sponsored migrants are permitted a maximum of four weeks unpaid leave in a calendar year; falling foul of this automatically results in withdrawal of sponsorship. The Home Office released guidance last week confirming that, in light of coronavirus, sponsors are no longer required to withdraw sponsorship where a migrant is absent from work without pay for more than four weeks.
It is unclear, however, how that applies to sponsored migrants on furlough leave. Furlough requires an employee to remain at home and not work, but it is not unpaid leave. It would seem irrational to penalise sponsored migrants on furlough leave who are receiving a percentage of their salary but permit sponsored workers to be unpaid on leave. For the time being the Home Office is silent on the matter.
We advise employers to proceed with caution when considering whether to furlough sponsored employees, and also to have regard to the discrimination laws if only those who are not sponsored are placed on furlough leave.
2. Can sponsored employees be placed on unpaid leave?
As above, under normal circumstances a sponsored employee is only permitted to take a maximum of four weeks unpaid leave in any calendar year. However, the Home Office confirmed last week that sponsors do not need to report employee absences related to coronavirus and do not need to withdraw sponsorship if an employee is absent from work without pay for more than four weeks.
Employers, as ever, should be mindful of discrimination issues when considering who to place on unpaid leave.
3. What are the new automatic extension and in-country switching rules?
The Home Office has advised that anyone in the UK whose leave expires between 24 January 2020 and 30 May 2020 will have their permission to stay in the UK extended to 31 May 2020. They must contact the Home Office via a dedicated email address (CIH@homeoffice.go.uk) to be issued with the extension.
Additionally, until 31 May non-EEA nationals on a short-term visa can switch their permission to a long-term visa from within the UK, instead of being required to make the application from their home country. The same visa requirements, other than making the application from their home country, will apply. The Home Office is yet to clarify the specific criteria for eligibility for this exemption.
4. Can visa applications still be submitted and visa appointments booked?
At the time of writing this update (30 March 2020), most visa application centres globally as well as all Service Points and Centres within the UK have closed. Biometric appointments for applications therefore cannot be booked for the foreseeable future. Those who have already booked an appointment in-country at a Service Point and are yet to attend will have their appointment automatically rescheduled to six weeks from the date of their original appointment, however this is subject to further rescheduling as the pandemic develops. Those who have booked an appointment outside the UK will be contacted and informed that their appointment will not take place.
With the closure of Service Points it is unclear how those wishing to switch their leave category from within the UK under the new coronavirus exemptions will be able to do so.
We advise employers, and employees due to make an application, to seek advice on how closures and automatic extension of leave applies to you.
5. How do I carry out a right to work check working from home?
The Home Office released updated guidance yesterday, 30 March, in respect of right to work checks during the pandemic.
As of 30 March, employers are not required to see an employee’s original document in order to carry out a compliant right to work check. This is a temporary measure and employers will be required to retrospectively check original documents in the normal way once COVID-19 measures end.
Employers may, instead of carrying out the check in person, do so over video call. The employee/onboarder can send via email or mobile app scans or photos of their right to work documents instead of the originals.
Employers should still ensure they are checking prescribed acceptable documents that evidence right to work, listed in the right to work check guidance. Online checks can still be made where an individual has been issued with a Biometric Resident Permit (BRP) or has been granted status under the EU Settlement Scheme.
6. Home Office guidance on how to carry out a right to work check during the temporary COVID-19 measures
The Employer Checking Service should still be used if the employee cannot show their documents.
Once the COVID-19 measures end employers must carry out retrospective checks on all employees whose documents were checked under the temporary measures. The retrospective check must be made within eight weeks of the measures ending. Records of both checks must be kept on file.
7. Issues regarding BRP and documents redirection
Due to most workplaces being closed, documents sent by the Home Office which require a signature (such as returned passports or newly issued BRPs) are not being delivered. For a delivery address to be changed once a consignment has gone out, couriers must confirm the change first with the Home Office which is causing severe delays. Where an applicant has initially arranged for their documents to be returned to an address which is now closed, they should update the Home Office of the new correspondence address as soon as possible. Work start dates may need to be delayed where right to work documents do not arrive in time.
If you have any questions about how COVID-19 is affecting your organisation, you should seek advice. Please contact a member of the team using our website, or speak with your usual Fox Williams contact.
We will keep you updated.
Articles and commentary by our legal experts on the impact of COVID-19 are all available here.
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