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Visa and Immigration update

Tuesday 21st April 2020

The Home Office has made temporary changes to its guidance for visitors, migrant workers and their sponsors in light of the Coronavirus pandemic. An overview of the changes is set out below.

Considerations for Migrant Workers and Visitors

Migrant workers and visitors with leave expiring before 31 May 2020

If a person holding a UK visitor visa has leave expiring before 31 May 2020 and cannot travel due to Coronavirus restrictions, the Home Office will not consider them an over-stayer. As such, future UK visa applications will not be prejudiced if they stay beyond the expiry date of their current visa as a result of the pandemic. The Home Office will grant them an extension to their leave until 31 May 2020. Visitors will however need to notify the Home Office via its online notification form in order to qualify for this extension.

The same will apply to migrant workers who have leave expiring before 31 May 2020 but who does not wish to remain beyond expiry of their current visa once travel restrictions have been lifted. Again, they will be permitted to remain until they are able to travel and future UK immigration applications will be not be affected. They must also notify the Home Office before their leave expires in the same way as visitors.
If, however, a migrant worker is in the UK currently, has leave expiring before 31 May 2020 but wishes to apply for leave to remain in any event, they should continue to submit, and pay for, a leave to remain application in the usual way.

Notwithstanding this, all UKVCAS centres are currently closed. This means that the application process for leave to remain applications cannot currently be completed as applicants are not able to attend appointments to submit their biometric data. Therefore provided they submit a valid online application and pay the relevant fee before expiry of their current visa, those with leave expiring before 31 May 2020 can remain in the UK on the same basis until the process is operational again. Their applications will not be prejudiced even if they receive a decision on their leave to remain application after expiry of their current leave.

New Visa Applications Made Outside the UK

At the time of writing, all UK visa application centres abroad are closed. It is not possible therefore to complete an application for a visitor or migrant worker visa. We are keeping a watching brief of any changes in this regard and will provide further updates in due course.

Likewise we understand that a number of test centres at which migrant workers can undertake English language tests, as required for certain UK visas, are also currently closed. This will also be a relevant consideration for those wishing to switch immigration categories within the UK who will need to satisfy the English language requirement for their new grant of leave.

Switching Visa Categories In Country

For those visa holders who are usually required to leave the UK before they can apply for a further or different grant of leave, the Home Office has indicated that in some circumstances they will be able to switch into a different immigration category within the UK. For example this would be relevant from those currently in the UK under a Tier 5 (creative and sporting) visa who wish to switch to a Tier 2 (Sportsperson) visa. This process is not currently up and running and so it remains to be seen how this will work in practice.

Considerations for Sponsors

Ordinarily most changes to a migrants working conditions need to be reported using the Sponsor Management System and in some cases such changes can affect their ongoing sponsorship. However, the Home Office have issued some further guidance in this area in light of the Coronavirus pandemic.

Working from Home

The Home Office has advised that sponsors do not need to report its migrant workers’ absences where these absences are as a result of the Coronavirus.

Unpaid Leave

The customary position is that whilst migrant workers can take short periods of unpaid leave, a sponsor would normally have to stop sponsoring them if they are absent from work without pay for 4 weeks or more in any calendar year. This must be also be reported via the SMS account. The Home Office has now indicated that it will not take any enforcement action against sponsors who continue to sponsor migrant workers despite absences due to Coronavirus and it will not be necessary to report such absences. This must however be agreed with the migrant worker themselves.

Reducing a Migrant Workers Pay

The Home Office has confirmed that sponsors can temporarily reduce the pay of their migrant worker employees to 80% of their salary or £2,500 per month, whichever is the lower. Any reductions must however be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. This is in line with the Government’s Coronavirus Job Retention Scheme. The reductions must be temporary, so that the migrant worker’s pay returns to at least previous levels once the arrangements have ended. This must also be done with the migrant worker’s agreement. For those visa categories where meeting a set salary is a requirement for the visa i.e. Tier 2 (General), consideration will need to be given as to whether the reduction goes below the minimum salary level usually required for that visa, as it is not clear whether the normal rules regarding salary levels will be strictly applied during this time (although there is an argument to suggest not). The Home Office has indicated that it will continue to review the position in this regard and so sponsors are advised to keep abreast of any changes.

If you would like more information on any of the points raised above or any advice in connection with the same, please contact Stuart Baird (Partner) – or Sarah Athi (Senior Associate) –