Is furlough available to employees on visas?
Those employees that are working while holding a visa are to be treated the same as local employees. There are however special circumstances for Tier 2 employer sponsored employees.
What does a Tier 2 sponsored employer need to do?
Those Tier 2 workers who are employed by employers with sponsor licences are normally subject to strict conditions in order to hold their visa. This includes requirements on the employer to notify the Home Office on changes in salary, terms of employment, absences and job title. The Tier 2 visa is also reliant on a minimum salary and specific job areas.
The following guidance has been released to inform Tier 2 employers on their responsibilities during the COVID-19 pandemic:
- If an employee has been furloughed on full pay, then there is no need to report this to the Home Office
- If an employee has been furloughed to 80% of their salary or £2,500 a month this has to be reported to the Home Office on the sponsor management system, with the reasoning stated as being due to furlough.
- If an employee is absent due to covid-19 under 4 weeks this does not need to be reported, if it is longer than 4 weeks it does need to be reported however the Home Office has noted that if it is due to Covid-19 they will not take any action
- If an employee has not been furloughed but their pay is reduced and is below the threshold then this must be reported.
- Employees working temporarily from home or overseas then the sponsor does not need to report this.
If a Tier 2 visa employee has applied for a change of employment, the application is currently being processed. Can they begin their new employment?
An employee can begin work if they have been given a certificate of sponsorship by the new employer, their application was submitted before their visa expired.
If their application is refused, then they must stop working straight away.
Is overseas working permitted under Tier 2 sponsored Visas?
Currently under immigration and employment laws in the UK there is no law stating that an employee must work in the UK while working for an UK employer. Also, employees of an UK company do not have to have UK immigration status to work abroad. If an employee begins to work abroad the company should note this agreement between employer and employee.
Will my time spent outside the UK during COVID-19 have an impact?
Yes this may have an impact on future immigration status.
To qualify for indefinite leave to remain or settled status, absences over 180 days within 12 months for the 5 years previous to an application is not permitted. With applications for British citizenship being much more stringent with only 90 days of absence.
However, the Home Office has suggested that the current circumstance would fall under ‘serious and compelling circumstance’ in which they have discretion to waive absences.
This is further helped as visa holders are currently being informed not to travel or in some circumstances being prevented from entering the UK. Therefore, these circumstances should equate to serious and compelling circumstances, documents showing this should be kept for future reference.
If an individual is choosing not to return, then the Home Office is less likely to wave these absences. If it can be avoided, we suggest that those wishing to apply for any immigration status with an absence requirement, an individual should not travel outside of the UK.
What if my visa is about to expire?
Usually there is a two-stage application system, however due to the current circumstances the first online process is only being accepted as all visa application centres are closed. Therefore, if an individual’s visa is about to expire then they should complete the application online and pay the fee.
If an application is submitted online before the expiry date, this will secure the right to remain and work. The requirement of biometric submissions is currently relaxed. Once the restrictions have been lifted then all applicants that have had their application accepted should attend visas centres.
What if my visa cannot be extended from inside the UK?
The application process set out for applicants that can apply within the UK is currently being offered to those who would have had to leave the UK before the COVID-19 pandemic
What if my visa is about to expire but I do not wish to extend it?
The Home Office has introduced an extension online application process to extend their visa until 31st May 2020. Each individual will have to provide identification or reasoning for not being able to return home via this application. This date should be extended if the current situation continues
What if an employee’s visa is about to expire and they cannot return to the UK?
There is currently no Home Office guidance on what visa holders should do in this situation.
This could seriously affect Tier 2 visa holders as once their visa is expired then they have a 12-month cooling off period in which they can’t return to the UK. However, this does not apply to those on a salary over £159,600 for a general Tier 2 visa and £120,000 for an inter-company transfer Tier 2 visa.
Hopefully, the Home Office will release guidance on this issue, but we advise to hold on to any information that would show the difficulty during these circumstances.
30-day travel visa: What if my employees visa is about to expire and cannot travel back to the UK?
An employee can request a replacement visa with new dates free of charge until the end of 2020. This should be done through the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk, with their nationality, name, date of birth and GWF reference number.
This will stay in place until the end of 2020, with applicants having to attend the visa centre once they open.
How do I perform a right to work check?
Usually you would have to perform the right to work check in person with the perspective employee. However, the Home Office has announced a new process:
- The employee should submit a copy of their documents via email or a mobile app
- Check the copy of documents against the originals through video call
- Note the date this was carried out as: “adjusted check undertaken on [insert date] due to Covid-19”
- If they have a right to work residence permit, then the employer should video call the employee and access their status under the EU Settlement Scheme with their permission.
After the Covid-19:
The Home Office should give guidance to the employers and then return to normal right to work checks.
Retroactive checks will be requested to be carried out; this should be noted as: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.”
Brexit and the EU Settlement Scheme:
Employers should be aware that the EU Settlement Scheme is still open and employees who are eligible should continue to register, as the transition period is ending on the 31st January 2020.
There has been no extra guidance in terms of the effect of COVID-19 on the EU Settlement Scheme as the application process can be done through the mobile app and online. However, the Home Office has noted that there will be a delay on the processing of applications due to the global pandemic.
Employers should keep up to date with any guidance from the Home Office and pass this information to employees eligible for the EU Settlement Scheme. They should continue to not make the application on behalf of the applicant.
For more details on coming to work in Ireland, please contact:
Sarah Henry
Director of Immigration Services
