COVID-19 UK immigration update: new guidance issued

26 March 2020 (last updated 15 April 2020)

We set out the most important points from the COVID-19 UK immigration guidance published by the Home Office so far.

Expiry of immigration permission

The Home Office has stated that “no individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future”.

Individuals whose leave has or is due to expire between 24 January and 31 May 2020, may request to have their UK immigration permission extended to 31 May 2020 if they were planning to leave the UK before the expiry of their leave and were unable to do so because of travel restrictions or self-isolation related to COVID-19.

To make this request, individuals have to contact the Home Office’s coronavirus immigration team (CIT) via an online form. The form requires individuals to provide mandatory personal details and information about their current UK immigration permission, and explain the reason they are unable to leave the UK. The Home Office will then contact the individual to let them know if their UK immigration permission has been extended to 31 May 2020 – a new Biometric Residence Permit (BRP) will not be issued.

Submitting such a request should protect an individual’s immigration status until 31 May 2020. However, we would advise that this procedure is only used where no other options are available. This request does not result in a grant of fresh immigration permission, which means that an individual’s leave is not automatically extended until a decision is made. Therefore, we are asking for further information as to how this would ensure individuals are not prevented from overstaying their leave in the UK.

Consequently, we suggest individuals explore all other options to avoid becoming an overstayer before submitting this request: approval is not guaranteed and leave may run out prior to the decision to grant an extension.

Changing conditions of current UK immigration permission

The Home Office have confirmed to us that it is possible to request for the conditions of your current UK immigration permission to be changed, but only in order to take up specific employment, change course or place of study or access public funds. It is unclear at this stage as to relevant threshold for this request to be successful.

In order to make the request, the CIT must be contacted via the same online form as for requesting an extension. Unfortunately, the form does not currently contain an entry for such a request to be made – we have raised this with the Home Office and are currently awaiting a response.

There will also be a full hearing on the legality of the Home Office’s ‘no recourse to public funds’ policy on 6 & 7 May 2020. We shall update these FAQs once a judgment has been passed down on this.

UK immigration – switching in-country

The Home Office is now permitting eligible individuals who are currently in the UK with UK immigration permission which expires between 24 January and 31 May 2020 to apply to switch to long-term immigration permission in another UK immigration category from within the UK.

To be eligible, the individual’s current UK immigration permission must have expired or be due to expire between 24 January and 31 May, the requirements of the relevant UK immigration category must be met, and the applicant must still pay the relevant Home Office fees. We understand that the Home Office will not ask for the reasons why the application is being made, and therefore this option should be open to those who are physically able to leave the UK however do not wish to do so due to the current COVID-19 outbreak.

We are currently in contact with the Home Office to request that the option to switch in-country is extended to those whose UK immigration permission expires beyond 31 May 2020.

30-day travel vignette to enter the UK

The Home Office have confirmed that they are considering this issue of individuals being unable to travel to the UK within the 30 day validity period of their travel vignette – an update should be provided during week commencing 20 April 2020.

We shall update our FAQs as soon any guidance on this is received or published.

Tier 2 sponsors

Offering fresh sponsorship to new and current employees

All UKVCAS centres and VACs are now closed until further notice, meaning biometrics (photograph of face and fingerprints) cannot be submitted for new applications. However, individuals may still prepare their applications and submit online application forms. The Home Office have waived the 45-day deadline to submit biometrics and have confirmed that no applicant should be penalised for missing biometrics appointments where this has been impossible due to the relevant centre closing or the applicant having to self-isolate.

Significantly, the Home Office have confirmed that Tier 2 employees may start their sponsored role before their visa application has been decided (i.e. after they have been assigned a Certificate of Sponsorship (CoS) and have submitted their online application forms). The role that the employee takes up must be the same role as detailed on their CoS, and they may only start work on or after the start date detailed on their CoS. For employees who are currently in the UK and are applying for leave to remain, they must also submit their online application form before their current UK immigration permission expires.

Tier 2 sponsors will still be subject to the same reporting duties for these employees, however they will be unable to make the relevant reports on the online Sponsor Management System. Sponsors should therefore make and keep internal records of all the relevant reports in their HR systems.

If the employee’s application is eventually rejected as invalid or refused, Tier 2 sponsors will be required to terminate their employment immediately.

Reporting duties

Tier 2 sponsors have a number of reporting and record-keeping duties which they owe to the Home Office which have been impacted by the COVID-19 outbreak.

The Home Office have relaxed a number of these duties where COVID-19 related circumstances apply and have confirmed that until further notice sponsors do not need to do the following:

  • submit reports to state that their employees are now working from home;
  • report employee absences which they have authorised; and
  • withdraw sponsorship where an employee has been absent without pay for four weeks or more.

Salary reductions and furlough leave

The Home Office has clarified that sponsors can temporarily reduce the pay of their sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower. These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended. It also stated that “any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same”.

The Home Office seems to imply that salaries lower than the minimum salary thresholds can be paid, as long it amounts to minimum 80% of their salary or £2,500 per month (we have contacted the Home Office to request explicit confirmation of this). This includes the government’s furlough scheme introduced to mitigate the economic consequences of the COVID-19 crisis. A reasonable interpretation is that the Home Office requires that Tier 2 workers are not singled out to take the pay cut or the furlough leave.

Due to the imprecise wording of the Home Office we recommend that sponsors contact us for further advice before relying on these provisions and that they proceed with caution whilst we seek clarification from the Home Office.

Options other than reducing salaries or furloughing 

Another option for sponsors to make it through the COVID-19 crisis could be to defer a sponsored employee’s salary (whilst still paying the sponsored employee their total annual guaranteed compensation). This should be reported on the Sponsor Management System (SMS) and reflected in the employee’s HR file.

Certain sponsors may also be considering the option of seconding their sponsored employees which could be possible provided that the reason for the secondment is for the sponsor to fulfill a contract for services that it has with a client. This secondment must be for a fixed term in nature and duration and the sponsored worker should not be undertaking a routine or ongoing role. If this is to occur sponsors must remember that they should remain in control of the duties, functions and outputs of the job and continue to be able to meet their Tier 2 reporting and other obligations. In addition, the Tier 2 employee must be undertaking the duties specified on their CoS (with a few exceptions to this rule). Sponsors who are considering this option should contact us before doing this to ensure that they do not breach their Tier 2 obligations.

Postponing new Tier 2 joiners’ start dates

If you have assigned a CoS and the sponsored employee has not yet submitted their online application, you may be able to postpone the start date beyond the three month validity period of the CoS i.e. submit an invalid CoS.

The Home Office has stated that it will not “automatically refuse” applications of this nature where, for example, the CoS has become invalid due to the employee’s inability to travel to the UK within the three month validity period. However, they will consider this on a case by case basis.

Note that the Home Office has only provided guidance where the employee has not yet submitted their Tier 2 application. For employees who have obtained immigration status, we have asked the Home Office for clarification regarding whether the position continues to be that their start date cannot be delayed more than 28 calendar days after the start date detailed on their CoS. We are awaiting a response regarding this. An alternative solution to postpone the start date in the meantime is to take advantage of the Home Office’s concession to allow employees to be absent without pay for more than four weeks.

Right to work checks

Following the outbreak of COVID-19 and consequent self-isolation and social distancing measures, some employers may be unable to comply with the manual right to work check process.

As employees are increasingly unable to attend the workplace and postal services may be delayed or difficult to arrange, some prospective employees are unable to provide employers with the original documents before they commence work to enable a compliant right to work to be taken.

The Home Office has confirmed that right to work checks may be undertaken by verifying the authenticity of the documents via video conferencing facilities. The employee should first send a scan or photo of the prescribed document(s) visa email or mobile app rather sending the original document. During the call the employee must hold the original document up to the camera to enable the right to wok check to be undertaken. The individual conducting the check must record specific wording on both sides of the scan or photo. In respect of employees who hold a biometric residence permit, biometric residence card or status issued under the EU Settlement Scheme, employers should use the online right to work process.

Note importantly that follow up checks will be required after the COVID-19 measures end. Read our informative article for further detail regarding the adjusted manual right to work measures and retrospective checks that will need to be undertaken.

Alternative Collection Locations (ACL)

ACLs are normally required to conduct face-to-face verification of an individual’s presence in the UK prior to issuing a BRP. Such verification measures may however be conducted via Skype or other visual communication system, thereby avoiding the need for an in-person meeting. The ACL must be satisfied that the individual has entered the UK and is within the UK at the time verification takes place also ensuring that the individual entered the UK during the validity of their travel vignette. An individual may present, for example, a boarding pass, travel ticket or passport stamp to satisfy these requirements.

As an ACL, LDI are able to offer online visual verification and then delivery of BRPs via courier to migrants to avoid the need for attendance at our office.

Residence requirements

A number of UK immigration applicants will be impacted by the COVID-19 outbreak in regard to the satisfaction of residence requirements. The Home Office is yet to address this issue.

LDI are seeking advice from the Home Office to obtain clarity as to how applicants shall be impacted in relation to these requirements.

Global Talent, Innovator, Start-up

Applicants for the Global Talent, Innovator or Start-up routes may still be able to obtain immigration status if their endorsement from an endorsing body has expired because they have not been able to travel to the UK. Applications will be considered on a case by case basis.

Tier 1 (Entrepreneur)

The Home Office has adapted the requirement for Tier 1 (Entrepreneurs) to employ at least 2 people for 12 consecutive months each. The 12-month period can now be made up of multiple employees across different months. Entrepreneurs who are unable to employ staff for 12 months in total by the time their visa expires are temporarily allowed to extend their stay to meet the requirement. Time when employees were furloughed will not count towards the 12-month period.

Other UK immigration services and operations

Service and Support Centres – closed.
Life in the UK tests – suspended.
Citizenship ceremonies – upcoming ceremonies have been cancelled; the Home Office will confirm once these have been rescheduled. Ceremonies now have to be booked within six months of receiving an invitation from the Home Office, instead of three months.
Police Registration Scheme – this has been suspended and the OVRO has been closed until further notice. The Home Office have confirmed that individuals will not face penalties for missing or failing to book appointments as required. There are certain steps individuals should take now to minimise waiting times in the future – please contact us for further details on this.
Asylum interviews – all face-to-face asylum interviews have been cancelled. The Home Office is aiming to commence arranging digital interviews shortly.
Tier 2 and 5 Priority Service line – is now closed.

Visa Application Centres (VAC) and UKVCAS centres

Following the submission of online application forms, applicants are generally required to submit their biometrics (photograph of face and fingerprints) within 45 days at either a VAC (for overseas applicants) or a UKVCAS centre (for in-country applicants).

All UKVCAS centres and VACs are now closed until further notice, meaning biometrics cannot be submitted for new applications. The Home Office have waived the 45-day deadline to submit biometrics and have confirmed that no applicant should be penalised for missing biometrics appointments where this has been impossible due to the relevant centre closing or the applicant having to self-isolate.

Individuals may still therefore prepare their applications and submit online application forms which, if submitted prior to the expiry of their current UK immigration permission, will protect their immigration status in the UK until their application is processed and a decision has been made i.e. after all the centres have re-opened.

Those who already had UKVCAS centre appointments booked will have their appointment automatically rescheduled to six weeks after the original appointment date. Applicants can alternatively cancel their original or rescheduled appointment online to receive a full refund – however, applicants should be aware that they will be unable to book a new appointment until the online booking system re-opens.

Those who already has a VAC appointment booked should be contacted by the Home Office to be informed of the cancellation of their appointment. For individuals who have submitted documentation at a VAC, their documents should be returned shortly if they have paid for their documents to be returned via courier. For individuals who did not pay for a service such as this, it is recommended that they contact the relevant party (TLS contact or VFS) to request return via courier as soon as possible.

The Home Office has also suspended the ‘priority’ and ‘super priority’ service for applications submitted from outside the UK.

The situation is subject to daily change. Please click on the following links for the most up-to-date information:

Other UK immigration issues

LDI will continue to work with other members of the Immigration Law Practitioners’ Association (ILPA) to obtain urgent clarification on a number of other COVID-19 UK immigration issues.

We are committed to supporting clients through this extraordinary time and will work tirelessly to mitigate the impact to clients and influence the Home Office’s approach as to how it will need to review the UK immigration system to recognise the unparalleled position businesses and migrants shall now be in.

If you have any queries relating to the points raised above, or any other UK or US immigration query, please contact a member of the team at LDI or email enquiries@lauradevine.com.

Francesca Sciberras

Senior Solicitor


Joshua Hopkins

Paralegal


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