A guide to the immigration implications of COVID-19 for UK employers
23 November 2020
This document sets out the main immigration law issues and Home Office guidance that you need to be aware of so you can consider the implications of the COVID-19 pandemic for your business. The Home Office is making policy announcements and issuing revised guidance regularly and we will keep you updated as this is published.
(Updated as of 23 November 2020)
This document summarises the latest updates and provides further details on the issues listed below, from logistical considerations to Tier 2 and prevention of illegal working requirements.
Key points from latest guidance
The current document has been updated to reflect the following recent developments:
- Extension of the concession that allows applicants making any type of entry clearance application to apply from any VAC worldwide where their VAC is closed – this will now be allowed until at least 31 March 2021
- Confirmation from the Home Office that in-country UKVCAS service points are considered essential services and will therefore remain open in the UK
- Confirmation that health workers in eligible occupations with immigration permission expiring between 1 October 2020 and 31 March 2021 can benefit from a free 12-month extension of their permission
- The implementation of an interim email-based application process for exceptional assurance, which has been put in place due to technical difficulties arising with the online application form
Selected issues arising from the COVID-19 pandemic
1. Visa processing issues
2. Passport applications for British citizens abroad
3. Self-quarantine measures for arrivals to the UK
4. ‘Essential travel’ policy for travel outside the UK
5. Arrangements for visa holders with expiry dates to 31 August 2020
6. Arrangements for those who cannot depart the UK by 31 August 2020
7. Arrangements for health and social care workers
8. Moving immigration category
9. The cooling-off period
10. Family and private life applicants
11. Indefinite leave to remain
12. Tier 2 sponsor licence holders
13. Global Talent applicants
14. Implications for EEA/Swiss nationals
15. Right to work checks
1. Visa Processing Issues
The issues relating to UK visa processing are complex and rapidly changing. Please contact us for advice on whether to submit or defer making an application on a case-by-case basis, particularly for applicants in the UK or who have departed the UK to make a further application from abroad while seeking to preserve the continuity of their leave for indefinite leave to remain (ILR) purposes.
The Home Office is aware that some applicants may wish to withdraw an outstanding application due to circumstances connected to the pandemic. Its refund policies for withdrawing applications and requesting refunds have been updated accordingly.
Applying from abroad
The Home Office works with two commercial providers, VFS Global, and TLScontact, who operate the VACs abroad. Applicants need to attend a VAC to provide biometrics and upload supporting documents for UK visa applications.VACs have been reopening on a phased basis since 1 June 2020, however it has also been necessary to reclose some locations due to local surges in COVID-19 infection levels.
On 14 August 2020 the Home Office confirmed a new concession to allow applicants making any type of entry clearance application to apply from any VAC worldwide where their VAC is closed and they meet the entry requirements for the country they wish to apply from. This relaxes the usual restrictions on the location where some application types can be submitted. The wording of the concession was updated on 24 August 2020 to clarify that entry clearance applicants must select the country where they intend to submit their biometrics at the start of their application form. Further clarification was added on 12 October 2020, confirming that applications for a visit visa may be submitted to any UK VAC.
If an overseas visa applicant has submitted an entry clearance online for one visa application centre location and then wishes to attend a different one, they must submit a fresh entry clearance application and ask for a fee refund for the original application.
This concession has been extended to 31 March 2021.
The latest advice from VFS Global can be checked here.
Status information on TLScontact VACs can be checked on the address page of the relevant preferred appointment location.
Applicants with appointments already booked at VACs that are closed should be contacted by the commercial partner directly.
Due to border restrictions in some countries, commercial partners are also experiencing problems with being able to print and send UK visa vignettes and to return passports to applicants. Where possible, passports are being returned where VACs have re-opened. Any concerns about this should be sent to the commercial partner, noting that they will be required to comply with any local movement-related restrictions when returning documents.
If an applicant has already been granted their visa but they are unable to travel during the 30-day window of their temporary entry clearance vignette, they may need to obtain a new vignette before they travel.
The Home Office published guidance on 28 April 2020 confirming that a person whose temporary 30-day vignette has expired or is about to expire can request a free replacement visa until the end of 2020.
They must do this by emailing CIH@homeoffice.gov.uk, with REPLACEMENT 30 DAY VISA in the subject line, and including the vignette holder’s name, nationality, date of birth and GWF reference number in the body of the email. If they have already contacted the Coronavirus Immigration Help Centre previously, they should also state this in the email. Individuals should not send follow-up emails unless this is to report a change of circumstances.
Individuals who use this process will be contacted by the relevant VAC once it has re-opened, to arrange for a replacement visa with revised validity dates to be placed in their passport.
Alternatively individuals can contact the VAC directly to arrange the replacement if the VAC is open. They should not travel to the VAC with their passport before checking the relevant process on the commercial partner website. There is separate guidance for those who applied using an Immigration New Zealand biometric enrolment location.
The Home Office confirmed on 15 June 2020 that new and replacement vignettes will be valid for 90 days.
The requirement for a temporary vignette to be valid at the time of entry to the UK may be waived for non-visas nationals (countries who do not appear on the visa national list), especially where their BRP has already been issued and evidence of this can be provided on entry to the UK. Please contact us for further advice on this option.
There have also been some issues noted with the vignette replacement process, with some applicants receiving a fresh (but shortened) grant of entry clearance. Please contact us for assistance if this has occurred.
Any applicant intending to leave the UK in order to submit a new visa application from abroad should consider the Home Office’s latest published guidance, which confirms that applicants with a visa expiry date after 31 August 2020 may be allowed to submit their visa application within the UK where they would normally be required to submit this from abroad but the application is urgent. See the ‘Moving immigration category’ section of this guide for more information.
Applicants should also ensure they remain up-to-date on any local restrictions which may affect the submission of their application and contact the VAC to reschedule a booked appointment as appropriate. For example, where VACs are open, applicants must take into account and clear any applicable self-isolation period before they attend the appointment. Applicants must also comply with any local requirements relating to travel restrictions. For example, many Australian citizens and permanent residents are not allowed to travel overseas unless they apply for and are granted an exemption. There is also an email process for South Africans to request permission to travel overseas.
In exceptional circumstances, it is possible to request a visa waiver in order to enter the UK as a visitor. Requests can be submitted by email to CIH@homeoffice.gov.uk setting out the urgent, compelling or compassionate reasons. Each request will be considered on case-by-case basis, but this option is unlikely to be available if the relevant VAC is currently open.
Applying from within the UK
Sopra Steria, the Home Office’s commercial partner that manages in-country biometric appointments, suspended all UKVCAS services from close of business on 27 March 2020. Many service points have now re-opened on a phased basis since 1 June 2020. Information on which centres are open can be found here.
UKVI’s Service and Support Centres (SSCs) are operating on a reduced-capacity basis from 15 June 2020. The Home Office will contact applicants by email or post to make an appointment at one of these centres.
The Home Office is currently advising applicants not to select the priority or super priority processing options as these are not currently available.
Applicants with previously booked UKVCAS appointments should automatically have received a cancellation email, instructing them to log in to their UKVCAS account 24 hours later to view the rescheduled appointment date and time. Rescheduled appointments are guaranteed to take place at the same centre on a future date. Sopra Steria confirms this will have no impact on submitted applications as they will notify the Home Office directly of the delayed appointment.
Lewis Silkin will continue to be an alternative collection location for our clients’ BRPs. We will therefore continue to receive them at our office and provide a notification when this has happened. We will store them securely until such time as non-essential travel is permitted by the Government and documents can be distributed. We anticipate delays in production and receipt of BRPs due to office closures and Government staff shortages so confirming the receipt of a BRP may take considerably longer than the usual 7-10 working day timeframe.
The Home Office confirmed on 28 April 2020 that individuals will not be penalised for being unable to collect their BRP while coronavirus measures are in place.
Disruption to services associated with making UK immigration and nationality applications
With limited exceptions mentioned elsewhere in this guide, applicants must still satisfy the requirements of the relevant immigration category or British nationality law in the usual way. This may mean obtaining assessment of an overseas degree, passing a valid UKVI-approved English language test, passing the Life in the UK test or attending a British citizenship ceremony.
Individuals applying in the UK should still ensure they submit their online application before the expiry of their existing leave in order to maintain lawful immigration status, even where supporting documentation is unavailable due to service closures. The Home Office will ask for outstanding documents/information to be submitted once services have resumed and before the application is decided.
Those who are required to register with the police must still make arrangements to do so.
Although in-country immigration processing has been substantially reduced due to the pandemic, applications are currently proceeding through to decision in most cases.
a) Assessment of overseas degrees
UK NARIC is continuing to conduct qualification assessments of overseas degrees and fast-tracked turnaround is still possible. However, statements are being issued electronically in PDF format and applicants will not receive a hard copy statement from UK NARIC until further notice. The PDF statements issued will be temporary documents designed specifically for the current period of COVID-19 restrictions. Once the restrictions are relaxed, UK NARIC will issue the official printed paper version of the statements by post. The Home Office will be aware of this change in process from UK NARIC and will have means to verify the authenticity of the temporary statements via www.naric.org.uk/verification. The documents required for an assessment to be conducted remain the same. This includes a valid medium of instruction letter from the relevant educational institution where it is not clear from the degree certificate or transcript that the course was taught in English.
b) UKVI-approved English language tests
The British Council, who are approved providers of the IELTS for UKVI and Life Skills tests required for a number of visa categories in the UK and overseas, have temporarily paused tests in many countries in response to Government and health authority guidance. To check if a particular country or test centre is affected, applicants can refer to the COVID-19 guidance on the IELTS website.
Trinity College London, who are approved providers of the GESE and ISE exams in the UK only, have re-started some tests from 8 June 2020. Updates can be viewed on the Trinity College London website.
LanguageCert, who have recently been approved to provide secure English-language tests on behalf of UKVI have started to re-open some of their test centres since 1 June 2020. Details of the current open centres are available on the LanguageCert website.
Pearson, who offer UKVI-approved PTE Academic and PTE Home tests outside the UK only, have some centres open. See the Pearson website for further information.
PSI Services, who offer UKVI-approved Skills for English UKVI outside the UK only, also have some centres open. See the PSI Services website for details.
c) Life in the UK tests
Life in the UK test centres, relevant to applicants for indefinite leave to remain and naturalisation, closed from 21 March until 31 May 2020. Some centres have been re-opening since 1 June 2020 and information on which centres are currently operational can be found on the LIUK website.
d) Police registration certificates
Police registration at the Overseas Visitors Records Office (OVRO) reopened on 7 October 2020 following a period of closure. It is necessary in all cases to book an appointment to attend as walk in applicants are no longer allowed. The appointment must be made within the relevant time frame for complying with police registration requirements, which is within seven days of arrival for a first registration, or within seven days of a change of circumstance.
The service has reopened five days a week instead of four, and under enhanced health and safety arrangements. Customers will be encouraged to wear a face mask when attending.
The Government previously confirmed that action will not be taken against individuals who were unable to attend the OVRO or to book an appointment in order to either register their stay in the UK or update existing certificates while the service was closed due to COVID-19.
Those who live outside the London metropolitan area covered by OVRO should contact their local police force for guidance.
2. Passport applications for British citizens abroad
Applications for British passports can be made online, however applicants who are abroad and need to attend a VAC will only be able to complete their application if the VAC is open.
British citizens who urgently need to travel to the UK without a passport need to contact the British Embassy, High Commission or Consulate in the country where they are located.
3. Self-quarantine measures for arrivals to the UK
Self-quarantine measures for most new arrivals to the UK have been put in place from 8 June 2020 and are now subject to review on a rolling basis. Initially the reviews were intended to be every 28 days, then every 21 days. The shift to rolling-basis amendment means that travellers have less certainty over whether they will be required to self-isolate on arrival in the UK. They should be prepared for this possibility.
Within 48 hours of arriving in the UK, travellers must complete a Public Health Passenger Locator form with their contact details and travel information, so they can be followed up if they or someone they may have been in contact with develops COVID-19. If they have not arranged to stay at a hotel, with friends/family or at their own accommodation, then they will be provided with government-arranged accommodation at their own cost. Information will also be provided on the NHS contact tracing app, with travellers being encouraged to download this.
Following entry, travellers must use personal transport where possible to get to their accommodation and remain there in self-isolation for 14 days. They must not go out during this period, unless it is for urgent assistance, to attend a funeral or due to another compassionate circumstance, to buy food or medicine where they cannot have this brought to them, or there is an emergency. Visitors are not allowed unless this is required for essential support.
Those who refuse to provide their contact details can be fined £100 and may be refused entry if they are not British or a UK resident. A fine of up to £1,000 may also be imposed in England and Wales if it is found that the self-quarantine has been breached, eg at a spot check. Enforcement measures in Scotland and Northern Ireland will be published on GOV.UK.
Common Travel Area and ‘travel corridor’ exemptions
Some individuals are exempt from the measures, including those who enter the UK from the Common Travel Area (the Republic of Ireland, Isle of Man and the Channel Islands), provided they have been in the area for at least 14 days already.
Since 10 July 2020 (11 July 2020 for Wales), travellers arriving in the UK from listed 'travel corridor' countries and territories do not have to self-quarantine provided they have not been to, or had a transit stop in, any non-listed country within the last 14 days. The lists can be amended without notice. Those who intend to travel to England can sign up to receive an alert whenever the travel corridor list for England is updated. Specific advice should be sought for travellers who are intending to spend time in more than one nation of the UK within 14 days of their arrival.
It should be noted that making a transit stop in a country that is not on the relevant travel corridor list will mean that self-quarantine will apply on arrival unless the person is exempt due to the purpose of their travel to the UK. This means that some individuals who need to travel long-haul will still need to self-quarantine in the UK in some cases depending on their route and transit stops. The measures are not reciprocal, so travellers should also check what self-quarantine or other restrictions apply in all countries they intend to enter or transit before travelling.
Exemptions due to purpose of travel to the UK
Separately, there is a list of individuals who are exempt from data collection and/or self-quarantine due to the purpose of their travel to the UK. This list mainly focuses on haulage and transportation workers, medical and scientific professionals needed to assist with the COVID-19 pandemic, professionals required to maintain essential infrastructure and diplomatic personnel. Cross-border workers are listed as exempt in England, Wales and Northern Ireland, but not in Scotland. There are also complexities to be aware of for cross-border workers, which are covered in this article.
Employers should note that the quarantine does not prevent a new employee from having their right to work checked remotely, or from being onboarded and starting work at the address where they are self-isolating.
4. ‘Essential travel’ policy for travel outside the UK
On 17 March 2020, the Foreign and Commonwealth Office issued a global advisory against all but essential travel. From 4 July 2020, this has been modified to exempt listed countries and territories that the Government considers do not pose an acceptably high risk for British travellers. Individuals intending to travel to these destinations should still ensure they check local requirements and restrictions, in particular about whether a period of self-quarantine is required on arrival.
5. Arrangements for visa holders with expiry dates to 31 August 2020
On 29 July 2020, the Home Office updated its COVID-19 advice for UK visa applicants and temporary UK residents to confirm that holders of UK visas with an expiry date between 24 January 2020 and 31 July 2020 have been allowed a further ‘grace period’ to 31 August 2020.
As clarified in an update made on 30 July 2020, individuals with leave expiring between 1 August and 31 August 2020 are also covered by the grace period.
Those who are covered by the grace period continue to be lawfully in the UK on the same conditions as previously. This means they will remain entitled to work, study and rent accommodation if their conditions previously allowed this. They do not have to contact the Home Office if they are able to leave the UK by 31 August 2020.
The guidance stops short of confirming the grace period is a further automatic extension of leave. Aside from the questionable legality of this, the change in messaging is important, as it is a strong signal that there should be no expectation of further lawful stay beyond 31 August 2020.
The guidance does confirm that no adverse consequences will apply to anyone with leave expiring between 24 January 2020 and 31 August 2020, even if they take no action to regularise their stay by contacting the Home Office within that time. They must however either depart the UK or make an application for further leave by 31 August 2020.
Under the previous concession in place between 22 May 2020 and 29 July 2020, holders of UK visas with an expiry date between 24 January 2020 and 31 July 2020 were able to make a free application to have their stay extended to 31 July 2020 (using a short online form) if they were not planning to stay in the UK but could not leave the UK due to COVID-19 travel restrictions or self-isolation.
When the pandemic initially emerged, there was an arrangement for Chinese nationals with visa expiries between 24 January 2020 and 30 March 2020, whose stay was extended automatically to 31 March. An application process was then implemented for those with expiries up to 31 May. This was made available as an email request, and then replaced with an online form.
Anyone whose leave expiry was extended to 31 May received an automatic extension to 31 July. Those who had not applied for an extension before and needed their visa to be extended to 31 July had to request this using the online form.
Those who need a status letter confirming the extension of their leave or a new BRP with the revised expiry date should contact the Coronavirus Immigration Team (CIT) at CIH@homeoffice.gov.uk to request this. In other cases, no further documentation has been issued to affected individuals, other than the email from the CIT in response to an extension request made either by email or using the online form.
6.‘Exceptional assurance’ arrangements for those unable to depart the UK after 31 August 2020
Individuals with leave expiring between 1 September 2020 and 301 NovemOctober 2020 are able to submit a request to the Coronavirus Immigration Team for ‘exceptional assurance’ if they intend to depart the UK but cannot do so by the date their leave is due to expire. The request is submitted using an online form and is free of charge. The request must be made before the date the person’s leave expires.
Due to technical difficulties with the online form, the Home Office put a temporary email-based process in place from 23 November 2020. Applicants should check the GOV.UK website for the correct online form or email-based process at the time they need to apply.
People who were covered by the grace period were able to apply for exceptional assurance, however the deadline for doing this was 31 August 2020.
Exceptional assurance is not leave to remain but the Home Office states that if this is granted, it will protect a person from any action or adverse consequences from the UK government after their leave has expired. If their previous immigration conditions allowed them to work, study or rent accommodation, they will be able to do this during the period of the exceptional assurance.
A person who requests exceptional assurance will have to provide the Home Office with details of their circumstances, including stating and substantiating why they are not able to depart before their existing leave expires. Evidence of a flight booking or positive coronavirus test result may be required for example.
If it becomes clear that a person will still be unable to depart the UK by the assurance date confirmed by the Home Office, they must submit a fresh online form and updated supporting information. This must be done before the assurance date.
Our view is that requesting exceptional assurance should only be used as a last resort for the following reasons:
- It is in effect a period of tolerated overstay, which will have to be declared and may have adverse consequences from the perspective of making future applications for countries other than the UK;
- Subject to further COVID-19 concession announcements, there will be significant restrictions on regularising UK immigration status in-country if the person’s circumstances change such that they no longer wish to depart the UK;
- The Home Office has not yet explicitly confirmed whether the terms and conditions remain in place between when a person’s leave expires and when they are granted exceptional assurance (although this is likely to be the case); and
- It is not clear whether no longer having valid leave in the UK will invalidate/prohibit extension of any travel, medical or other insurances the person holds, or if they may become subject to NHS charging for some medical conditions.
For some people, for example those who wish to be able to continue to work, study or rent accommodation until they are able to depart the UK, or who anticipate possibly wanting to remain in the UK if it remains impossible to depart, it may be more appropriate to consider making a further fee-paid application than requesting exceptional assurance. We are happy to discuss individual circumstances on a case-by-case basis.
7. Arrangements for health and social care workers
The Home Office has put in place a range of provisions to assist health and social care workers during the pandemic.
Free one-year visa extension
On 31 March 2020 the Government announced that NHS doctors, nurses and paramedics whose visas were due to expire before 1 October 2020 could have their leave to remain extended for one year.
This provision was substantially expanded via an announcement on 29 April 2020. Following the expansion, an automatic one-year visa extension is available to frontline health and social care workers working both for the NHS and in the independent sector whose visas expire between 31 March 2020 and 30 September 2020. It should be noted that care workers in nursing homes or private residences are not included.
On 1 May 2020 the Government published an exhaustive list of eligible occupations – biochemist; biological scientist; dental practitioners; health professional; medical practitioner; medical radiographer; midwife; nurse; occupational therapist; ophthalmologist; paramedic; pharmacist; physiotherapist; podiatrist; psychologist; social worker; speech and language therapist; therapy professional.
The arrangements also cover the dependent family members of eligible workers.
Extensions will be issued automatically, and individuals will be exempt from having to pay the Government application fee and Immigration Health Surcharge. NHS workers with an outstanding application will be offered a refund.
Eligible applicants will be identified and contacted directly by the Home Office. Those who are not sure whether they are within scope of the concession should contact us or the HR representatives responsible for immigration matters at their employer, as employers identified by the Department for Health and Social Care will liaise with the Home Office to compile a list of eligible individuals.
On 23 November 2020 the Home Office announced that the extension concession had been expanded to cover those in eligible occupations whose leave expires between 1 October 2020 and 31 March 2021. Individuals who are changing employer are outside the scope of the concession. The application process was also changed to require eligible applicants to complete an online form. As at 24 November 2020 the form has not yet been made available, however applicants can sign up to receive an email alert when it is.
Those who have already made a paid-for extension application may apply to the Home Office to have one year’s fees refunded. The process for doing this is set out on GOV.UK here.
Immigration Health Surcharge exemption
In a public announcement on 21 May 2020, and following significant pressure from Members of Parliament, the Government announced an intention to exempt all NHS staff and care workers from having to pay the Immigration Health Surcharge. The Government subsequently published further details on this, as well as launching a new Health and Care visa under Tier 2, which we discuss in this article.
The 29 April statement also confirmed that the family members of frontline workers who die from COVID-19 will be offered free and immediate indefinite leave to remain (ILR). A publicly-available bereavement scheme policy was subsequently published on 20 May 2020, stating that ILR will be granted to any non-EEA family member of any NHS worker, including support staff, or a healthcare or social care worker in the independent health and social care sector. Eligible individuals should be contacted by the Home Office, but can also email UKVINHSTeam@homeffice.gov.uk if they have not been contacted and believe they are within scope. Although excluded from the published concession, the EEA/Swiss national family members of EEA/Swiss frontline workers who have passed away due to COVID-19 may be eligible to apply for ILR under the EU Settlement Scheme. It will be necessary to contact UKVI’s NHS Team to ascertain what, if any, arrangements will be available for the EEA/Swiss family members of non-EEA frontline workers, as they appear to have been overlooked.
Relaxation of work restrictions
Also, since 31 March 2020, there is no limit on the number of hours per week a person can work or volunteer if they work for the NHS as a doctor, nurse or paramedic and are in the UK as a Tier 4 student, a Tier 2 worker working for the NHS as a second job, a visiting academic or a short-term visa holder who is allowed to volunteer. These provisions were expanded on 1 May 2020 to cover those working in all eligible COVID-19 frontline occupations, to state that frontline work can be undertaken at any NHS hospital without the need to notify the Home Office and that supplementary frontline work is allowed in any role, at any skill level and with no limit on the number of hours allowed.
Extension of OSCE examination deadline for nurses
Pre-registration nurses have also had the deadline to sit the Occupational Structured Clinical Examination (OSCE) pushed back to 31 December 2020, and they have been given until 31 May 2021 to pass this if they are not successful on their first attempt.
8. Moving immigration category
The Home Office initially announced a concession to allow Chinese nationals currently on a Tier 2 (Intra-company Transfer) visa to switch in-country to a Tier 2 (General) visa. Normally such a switch would require a fresh visa application to be made from abroad.
This concession was significantly widened in the guidance from 24 March 2020 to cover switching into all long-term visa categories until 31 May 2020, and then extended on 22 May 2020.
The current position is that provided the application is submitted by 31 August 2020, anyone with a visa expiring between 24 January 2020 and 31 August 2020 (including those who are covered by the grace period) who would normally have to depart the UK to submit a long-term visa application from abroad is permitted to submit their application in the UK instead. The usual UK immigration fees for in-country applications will be charged.
Although the guidance on GOV.UK does not elaborate what a ‘long-term’ visa is, standard correspondence from the Coronavirus Immigration Helpline confirms that this excludes the Tier 5 Youth Mobility Scheme, Tier 5 seasonal worker and overseas domestic worker categories, as well as Tier 4 applications from individuals in receipt of a Chevening, Commonwealth or Marshall scholarship.
On 26 June 2020 the Home Office confirmed on GOV.UK (see National Archives) that individuals whose leave was due to expire after 31 July 2020 could make an application from within the UK if:
- They urgently needed to make the new application, eg to start a new job or course of study, including where this involves switching immigration route; and
- They could not leave the UK to make an application from overseas.
This concession was removed on 29 July 2020 and eventually replaced on 7 August 2020 with a less restrictive concession for those whose leave expires after 31 August 2020. Under that version of the concession, individuals were allowed to apply for further leave in circumstances where they would normally have to apply for entry clearance if their application was urgent. A revision on 16 October 2020 introduced a further requirement for family and private life applicants, namely that the applicant must also show their application cannot be made abroad due to coronavirus. The main switching concession for applicants in other immigration categories has not been updated, however it is possible this could be revised in the near future as the two concessions are currently inconsistent. The cautious approach would be to put in submissions with all switching concession applications outlining both the urgency of the application and any reasons relating to coronavirus that mean an entry clearance application cannot be made.
We would suggest that detailed representations are submitted with any application that relies on the concession, addressing both why it is urgent and why the applicant cannot apply from abroad.
Applicants who are intending to submit their application within the UK when they would ordinarily be required to do so from abroad should also be aware that they still need to satisfy all the other requirements of the relevant visa category in the usual way and that they may encounter delays in receiving a decision due to factors such as UKVCAS and English-language testing centre closures/reduced capacity or UKVI staff shortages.
There currently is a lack of clarity about which online form applicants should use in some cases, and other issues such as whether applicants will need to complete tuberculosis screening in cases where this would have been required as part of the equivalent entry clearance application. The Home Office has not provided consistent guidance on these issues. Applicants with an imminent visa expiry date or who are not normally allowed to make their application from within the UK should seek advice on the best approach for their circumstances. This will vary on a case-by-case basis.
As announced in an update to the guidance on 14 April 2020, Tier 2 or 5 applicants whose in-country application is pending may start work in their new role before the application has been decided, if the following requirements are met:
- They have been assigned a CoS by the sponsor of the new role;
- Their application has been submitted online before their current visa expired and this can be evidenced to their sponsor; and
- The job they start is the same as the one listed on the CoS connected to their pending application.
The sponsor must comply with reporting responsibilities from the point at which they assign the CoS, not from the date the application is granted. Relevant changes need to be reported on the CoS as usual.
Before the application is decided, sponsors will not normally be able to make reports using the sponsor management system (SMS), unless they already sponsor the person in another role. During this time, any information that must normally be reported on the SMS in accordance with the sponsor guidance, such as a change in migrant circumstances, must be recorded and retained on the sponsor’s internal systems.
If the person’s application is rejected as invalid or is eventually refused by the Home Office, the sponsor must stop sponsoring them and they must stop working for the sponsor.
9. The Tier 2 cooling-off period
Employers should carefully consider the situation for Tier 2 visa holders who are currently stranded abroad, or requests from Tier 2 migrants who might wish to return to their home country or to travel to any other country to work remotely. If a Tier 2 visa holder is unable to return to the UK before their visa is due to expire, they may be caught by the cooling-off period which will prevent them returning to the UK on a Tier 2 visa for 12 months, or at the very least until the beginning of next year when the new Skilled Worker and Intra-Company Transfer categories come into effect. The cooling-off period does not apply if a person is applying for a Tier 2 General visa and their salary is above £159,600, if they are applying for a Tier 2 Intra Company Transfer visa and their salary is above £120,000, or if their original certificate of sponsorship was granted for three months or less.
We are hopeful the Home Office will offer some discretion, but this has not been formally confirmed. It is important that this is flagged with employees who could be affected. Please contact us for further guidance on this.
10. Indefinite Leave to Remain
Tier 2 General migrants who want to ultimately apply for ILR in the UK are subject to a rule on absences in that they cannot exceed 180 days absence from the UK in any 12-month period. There are some exceptions to this requirement, particularly when absences are due to an exceptional circumstance. It is likely that Tier 2 visa holders who accrue absences abroad as they are unable to travel due to COVID-19 will be able to argue that this amounts to an exceptional circumstance but the Home Office has not yet published any formal policy on the issue. We would recommend in this instance to keep records of flight tickets and other documentation to evidence the absence, which could be submitted at a later stage to support an ILR application.
11. Family and private life applicants
A range of temporary concessions and statements of existing policy were initially published on 9 June 2020 for family and private life applicants. The concessions do not apply to applicants in other categories. Some of the concessions require discretion to be exercised, so should be carefully prepared with supporting representations and evidence. Please contact us if assistance is needed with this.
Applicants stuck abroad
Where an applicant is outside the UK and has not made a further application before their leave as a family member or on private life grounds expired, a concession on GOV.UK confirms that a ‘short break’ in continuous residence will not count against them in the future. They are however expected to make their next application as soon as they can. It is not clear on GOV.UK whether an applicant abroad will be able to rely on their earnings from employment or self-employment if they are required to apply for entry clearance.
All family and private life applicants
The Home Office’s main guidance on family and private life applications was last updated on 1 November 2020 and include the following COVID-19 concessions:
- An applicant may start, extend or complete a route to settlement despite being in the UK as a visitor or with leave granted for six months or less, or being in-country or abroad for a short period without leave, where they demonstrate they were not able to travel or apply due to COVID-19 between March and 31 August 2020
- Individuals whose leave expires after 31 August 2020 can make an application to switch to a family or private life route in-country where they can show their application is urgent eg because of a family emergency, and there is a reason they cannot apply from outside the UK due coronavirus
- A short period spent abroad after leave expired may be ignored where an applicant shows they could not return to the UK to extend their leave due to COVID-19, provided they extend their leave or make an application for entry clearance as soon as practicable
- An applicant who applies for entry clearance abroad will be allowed to have this leave added to previous leave in the same family or private life category for the purposes of settlement, provided this was done to maintain continuity of leave
- A period of leave outside the Immigration Rules will be disregarded if it was granted by Border Force to allow an applicant to re-enter the UK after being stranded overseas due to COVID-19 when their leave expired between 1 March 2020 and 31 August 2020
Fiancés, fiancées and proposed civil partners
Individuals in these categories who have been unable to attend their ceremony due to COVID-19 will be covered by the grace period in the same way as individuals in other immigration categories. If their ceremony cannot take place by 31 August 2020 they can make a fee paid application to extend their leave for a further six months, provided the ceremony will take place within that time.
The guidance as updated on 14 August 2020 also provides the option of requesting exceptional assurance where the ceremony cannot take place by 31 August 2020, stating that the request should be accompanied by evidence of when the ceremony will take place. However, those who intend to make an in-country partner application following their ceremony should not use this option as they would be considered to be an overstayer when their partner application is made, which could lead either to refusal of the application or to them being placed on a ten-year route to settlement rather than a five-year one.
We have requested clarification from the Home Office about what the consequences of being covered by exceptional assurance are intended to be for this group and will provide an update once available.
Minimum income and adequate maintenance requirements
Two concessions have been implemented concerning the minimum income and adequate maintenance requirements. The GOV.UK website was last updated on 2 November 2020. The guidance - Appendix FM 1.7: financial requirement and Appendix FM Section 1.7A - Adequate maintenance and accommodation - were last updated on 4 November 2020. It is therefore important to read all of the publicly available information together.
Those who have lost income due to the pandemic up to 1 January 2020 will be allowed to count their employment income immediately before the loss, provided that the applicant is able to meet the requirement for at least six months up to the date the income was lost.
Those who have been furloughed or paid through the job support scheme will have their income assessed as though they were earning their full salary throughout the furlough period. This is not specified on GOV.UK but applicants will obviously need to submit evidence of the furlough arrangement if seeking to rely on this concession.
Self-employed individuals who have lost annual income between 1 March 2020 and 1 January 2021 will generally have this disregarded.
Although not particularly clearly worded, the concession also contains a reference to employment income from the same period being ignored for future applications, which we take to mean that an application for further leave or indefinite leave to remain will not be adversely affected due to the minimum income or adequate maintenance requirement having been modified in line with the concession.
It appears these concessions are being updated on a rolling basis, so we expect them to be amended further. To-date there has been a lag.
The Immigration Rules allow an application to be approved in some circumstances despite required specified documents not being provided, or for the case worker to ask for them after the application has been submitted but before it has been decided. This does not amount to a new concession however it is helpful to have confirmation that evidential flexibility will be considered if a person cannot obtain documents required for their application due to the pandemic.
English-language and Knowledge of Language and Life requirements
There is also already a provision in the Immigration Rules that allows an applicant in the partner or parent categories to be exempted from the English-language requirement if there are exceptional circumstances which prevent them from being able to meet it.
The Home Office’s guidance on the English language requirements for family members was updated on 21 July 2020 to confirm that an English language exemption can be requested if the relevant test centre was closed or the applicant could not travel to it as at the date they made their application. Evidence of this will need to be submitted, for example a print-out of information on the test centre’s website taken on the date of application. An exemption will also need to be specifically requested.
Those who state in their application that they have been delayed in taking a test but intend to do so can have their application placed on hold until they are able to provide details of having completed the test. However, if the delay is due to the testing centre being closed, then the better course would be to request an exemption.
Family route applicants for indefinite leave to remain can also have their application put on hold if they state that the relevant Life in the UK Test centre or English language test centre (if applicable) was closed or inaccessible due to COVID-19. The necessary confirmation of completing the test can be accepted after the date of application in these circumstances.
12. Tier 2 sponsor licence holders
Businesses holding a Tier 2 sponsor licence have certain reporting and record-keeping duties in relation to sponsored employees. The spread of COVID-19 and the consequential restrictions on travel could have implications for complying with sponsor licence duties. For instance, delays to start dates and changes in work location normally need to be reported within ten working days on the sponsor management system. The economic impact of COVID-19 may also mean that sponsors have to cut salaries or place employees on unpaid leave, which would be considered as changes in circumstances that need reporting if they relate to Tier 2 workers.
We would recommend that sponsors seek advice from us if they are unsure of whether a course of action they are considering might impact on the business’s sponsor licence duties. Failure to do so is serious as it can jeopardise the licence and the immigration status of sponsored workers.
Some particular issues to bear in mind:
- Sponsors must continue to report changes to their own circumstances as normal, including any changes to their key personnel, eg where a person leaves the business, where the organisational structure of the business changes or where it ceases trading or becomes insolvent
- Under normal Home Office guidance, a Tier 2 migrant can only delay their start date by up to 28 days once their visa has been granted, however the Home Office has confirmed this requirement will be waived if a start date has to be deferred due to COVID-19-related travel restrictions, or due to the sponsor dealing with the economic impact of the pandemic. Any delay to their start date should be reported on the sponsor management system, including delays beyond 28 days.
- Many Tier 2 workers will now be working from home as offices encourage remote working. A Tier 2 sponsor normally must report a change in work location on the sponsor management system within ten working days. The Home Office allows Tier 2 workers to work from home but the Home Office has confirmed that working from home temporarily in this circumstance is not a change of work address requiring an SMS report. Sponsors should continue to report any other changes, for instance if a sponsored employee is working out of another office abroad, or continues to work from home either in the UK or abroad in circumstances the sponsor has assessed are no longer related to COVID-19 restrictions. Sponsors should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties.
- Tier 2 sponsors must have a copy of the migrant’s passport and visa on file. See below for a link to our separate guidance on how to conduct right to work checks when employees are not able to attend work in person.
- A Restricted CoS must be assigned within three months. Once assigned, it must be used within three months. If either of these deadlines is missed, the CoS will become invalid and a new CoS will be required. However, where the CoS expired because the applicant was unable to travel due to the COVID-19 pandemic, guidance for sponsors states it may still be accepted by the Home Office. Employers were previously advised in the COVID-19 guidance of 3 April 2020 to submit details to the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk where decisions will be made on a case-by-case basis. This instruction no longer appears in the current guidance however would continue to be a sensible approach.
- Normally a Tier 2 worker cannot take unpaid leave of four weeks or more per calendar year, according to their normal working pattern, however the Home Office has published a concession allowing unpaid absences from work due to the COVID-19 outbreak.
- If a sponsor is having to consider cutting salaries and/or reducing working hours, this will have reporting and potentially other implications for Tier 2 workers. The Home Office updated its COVID-19 guidance for Tier 2, 4 and 5 sponsors on 3 April 2020. This confirms that employers may reduce the salary of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower. Any changes must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. The concession applies even where the SOC code minimum salary is higher than £30,000 (or other applicable general minimum threshold). The reduction is permitted as a temporary measure and, once the relevant policy has ended, the salary must return to the previous rate in accordance with the CoS. SMS reports must be submitted to notify the Home Office of all salary changes.
- Sponsors may have to consider terminating the employment of sponsored workers in light of the economic downturn, which will trigger reporting requirements for the sponsor and will have immigration implications for individuals.
For further information on the immigration implications for Tier 2 workers of changes to salary, the Government’s Furlough Scheme and redundancy, see our separate briefing note.
Services for sponsors have also been affected. For example, the service for Non-Premium A-rated sponsors to make eligible priority requests was suspended from 7 April 2020 and has been reinstated from 5 October 2020 with reduced capacity.
Guidance confirms that until at least 30 September 2020, the Home Office is allowing prospective or current sponsors to submit scanned documents in support of sponsor licence applications or sponsor-related requests. Originals must however be provided upon request.
Onsite visits to sponsors were previously suspended but have resumed. Some sponsor licence applicants will not receive a decision until the visit has been carried out and the compliance visit report has been assessed, so some applications will continue to be delayed.
13. Global Talent applicants
On 3 April 2020, the Government confirmed that Global Talent applicants whose endorsement has expired because they have not been able to travel to the UK may still be eligible for a visa, and that their circumstances would be considered on a case-by-case basis. This concession was replaced on 11 August 2020 to state that endorsements granted on or after 24 January will be accepted for applications submitted before 31 December 2020. Applications not meeting these requirements may still be considered on a case-by-case basis.
When making an application that relies on this concession, is advisable for to submit representations relating to disrupted plans to make a visa application, along with supporting evidence.
On 1 July 2020 a temporary concession was implemented for Global Talent applicants who are undertaking COVID-19 related research. It only applies to individuals who are endorsed by UK Research and Innovation under the endorsed funder route.
- the written confirmation from the endorsed funder must confirm the applicant’s award has at least one year remaining as at the date of application for endorsement (instead of the normal two years)
- the written confirmation must state that the applicant is working on a COVID-19 related grant and provide the relevant unique database reference number from the UK Collaborative Research COVID-19 Research Project Tracker
- the applicant’s employment or hosting agreement must have at least one year remaining on it as at the date of application for endorsement (instead of the normal two years)
- in-country switching will be allowed from any immigration category
Individuals covered by the concession will be granted entry clearance or leave to remain as normal. They will be able to request leave for up to five years and will become eligible for indefinite leave to remain after three years. The concession will remain in place until 31 January 2021 unless it is further extended.
14. Implications for EEA/Swiss nationals
As the UK has now left the European Union, nationals of the European Economic Area and Switzerland and their family members currently living in the UK have until the end of June 2021 to register under the EU Settlement Scheme (EUSS) for either pre-settled and settled status. They should continue to apply via the specially designed app available on both iPhone and Android devices. Applications for the EUSS can also be made from abroad.
For an individual to qualify for settled status, normally they must not be absent for over six months in any 12-month period. There is some discretion for absences up to 12 months for an ‘important reason’ such as sick leave, or compulsory military service of any length. There is therefore good reason to believe that an otherwise eligible individual who is abroad and who cannot return to the UK will have some discretion applied to them if their time abroad takes them beyond the six-month limit. We would suggest though that they take legal advice on this.
Currently, the Home Office is continuing to process EUSS applications, albeit with anticipated delays. Some new applications can still be submitted using the mobile app or online application form. After a period of suspension, since June 2020 non-EEA applicants have been able to apply online again if they do not hold a biometric residence card. Applicants who need to complete a paper application form must submit a request for a form to the Home Office and can continue to do so online.
Any applicants required to present their original ID documents at an ID document scanner location should note that this service has been suspended. It is currently possible to send passport and other ID documents directly to the Home Office by post, however it may take longer than usual for them to be returned.
15. Right to work checks
A right to work check (RTW) will usually involve an employee of the employer meeting with a new starter or existing employee in-person to check their documents. This may not be straight-forward while social distancing measures or lockdowns apply. Under the Government’s existing guidance for RTW, supplemented by temporary adjusted guidance published on 30 March 2020, employers must still conduct RTWs even if they are not able to meet with individuals face-to-face. They have provided leniency around how these are done so that scanned copies can be used on an adjusted basis instead of originals, but all other requirements must be met and a retrospective RTW conducted once normal working arrangements resume. Some of the Home Office’s published concessions also have implications for RTWs. For information on the options for RTWs during and after the COVID-19 pandemic, see our separate article.
For further information
The situation is continually changing. This advice will be updated but it is important to consult with us before taking action and to ensure ongoing compliance and best practice while immigration arrangements remain affected by the pandemic.
For information and guidance on issues including business continuity, contractual considerations and employer/employee relations visit our Lewis Silkin COVID-19 hub.
The main UK Government webpages for updates is GOV.UK - Coronavirus (COVID-19): immigration and borders.
The Home Office also has a dedicated Coronavirus Immigration Help Centre:
Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)
Calls are free of charge from inside the UK.
This publication provides general guidance only: expert advice should be sought in relation to particular circumstances.
© Lewis Silkin LLP 2020
(Updated as of 23 November 2020)
Covid 19 - Coronavirus
Our advice on responding to the coronavirus outbreak.