Sponsoring foreign workers during the Covid-19 pandemic

Many businesses and offices have now been closed and emptied for 10 weeks. Harry Sanders writes for the Immigration Advice Service about the current governmental advice for Tier 2 and Tier 5 sponsors

As summer draws ever closer, the UK – and indeed the rest of the world – enters another month of restrictive measures aimed at reducing the spread of Covid-19. For nearly three months, businesses and offices have struggled to cope with the vast array of complications caused by the pandemic, from the implementation of furlough schemes to regrettable redundancies. For some, their doors have even been closed permanently; unable to function with the loss of client-base their business has faced as a result.

While the latest government statements, which lay out plans for a phased easing of lockdown restrictions in England, seem to indicate that we are –slowly -- on our way back to normality, the journey there is not as clear-cut as many would have hoped, and business owners and directors are still looking for answers on what the future holds.

One of the most difficult areas to reconcile with pandemic restrictions has been recruitment. Not only have matters been made complex by logistical issues, like an inability to conduct face-to-face interviews, but the uncertainty of the situation many businesses are facing has meant that employers can no longer gage what talent they need, nor can they afford to make new hires in many cases. What’s more,  job applications have also plummeted, as the precariousness of the economy and people’s personal situations has meant that fewer people are applying for new roles while lockdown measures are still in place.  

For UK workers and recruiters this situation is certainly frustrating. However, international workers and those who normally recruit them, have several extra hurdles to jump. Many are finding it particularly difficult to navigate the travel restrictions and new legislation regarding Work Visas, for example. At present, the government’s advice for Tier 2 and 5 UK sponsors is relatively understanding of the current crisis: coronavirus-related absences and changes to work patterns (such as illnesses or caring for an ill family member, or scenarios in which roles are no longer able to function in the same way remotely) will not be perceived as in-breach of visa guidelines. This marks a change from usual sponsorship duties, which state that all UK sponsors must consistently ensure that all visa-holding employees are adhering to their roles as outlined on their Certificate of Sponsorship. To do this, sponsors are usually expected to keep records of all absences and changes using the Sponsor-Management-System (SMS). It is important to note that, while the UKVI will not penalise any sponsors or their employees for coronavirus-related absences, role changes,  or work-pattern changes, this rule still applies. In practice, this means that employers must continue to (either themselves or through an elected person) update the SMS accordingly.

Visa applications are still being accepted (with allowances for alterations in start dates due to the disruption), and employees’ pay is able to be reduced to 80 per cent of their salary (or to £2,500pm, whichever is lower) mirroring the furlough scheme in place for UK workers. Moreover, protections have been put in place to avoid kicking workers out of the country in the midst of the current global travel restrictions, and so those whose leave expired after 24 January have been granted visa extensions up to 31 July. This date is to be regularly reviewed. This is a free extension, but it is not automatic. As such, sponsors are encouraged to support their employees to contact the UKVI’s coronavirus help team requesting an extension on their visa, if they are eligible. In this contact, employees should give their CoS number as well as the reason(s) why coronavirus-related policies have stopped them from being able to return in time for their visa deadline. Once granted, they will be able to stay in the UK without being considered in breach of immigration law until the set date.

While this guidance is welcome, there is, however, much left unanswered by this advice, and myriad complications are still present for those with Tier 2 or Tier 5 Visas. For instance, the Home Office advises that a Tier 2 migrant can only delay their start date by 28 days once their visa has been granted. However, current travel restrictions dictate that many migrant workers will not be able to enter the UK in time for even their delayed start date. Working from home also raises certain bureaucratic issues for migrant workers and their sponsors. Normally, moving a migrant worker from the office to their home would class as a change in work location and would therefore have to be reported as such by their Tier 2 sponsor. However, the Home Office has ruled that this temporary change in address is not worthy of a sponsorship management system (SMS) report – so long as other circumstantial changes are reported and attendance is monitored as per usual.

On the contrary, however, although assurances have been made for migrant workers to be able to be place on furlough as part of a company-wide policy these salary changes must be submitted in an SMS report. It is uncertain what other situational changes must or must not be reported, and one would be excused for assuming that even the Home Office is unaware of what information it requires.

The visa application process has also been impacted by coronavirus. For Tier 2 workers, a Restricted Certificate of Sponsorship (CoS) must usually be assigned by their sponsor within three months of their job offer– and must then be used within a further three-month window for their visa application. Normally, missing either of these deadlines would invalidate the CoS, requiring a new one to be issued. But those whose certificates expired as a result of their inability to travel due to the pandemic may still be accepted by the Home Office, though this is to be assessed on a case-by-case basis under the ‘extenuating circumstances’ clause. Earlier advice suggested that the Coronavirus Immigration Help Centre should be contacted at CIH@homeoffice.gov.uk, and although this advice has been removed from the government’s official guidance, it is still advisable to do so.

Most worryingly of all are the cases of migrant workers whose employment has been or will be terminated due to coronavirus. Some employers may have no choice to do so, though this will have knock-on effects on the immigration status of their former employees. For example, those who are dependent on their sponsorship to remain in the country are to be left in limbo and will be unsure whether or not they are required to leave the country. Many of these people may also be physically unable to do so due to global travel restrictions, depending on the border and flight status on their home country.

Issues such as this have not been sufficiently covered in the advice of the UK government, and it is of paramount importance that they are clarified as quickly as possible. As the official guidance seems to change from week to week it is essential that any such changes are clearly signposted so that employers and workers do not fall into any serious pitfalls in our immigration legislation.