Update on Coronavirus and UK immigration

This article was written by Samar Shams and Talitha Degwa. It highlights the available policy information, the problems posed for visa holders and their employers and what they can do to mitigate them. It was originally published on 16 March 2020 and was last updated on 3 July 2021 by Samar Shams. This article is no longer being updated. Please contact a member of the Spencer West Immigration and Global Mobility team if you need advice on Coronavirus and UK immigration.

The main points are as follows:

Travel and extensions

• COVID-19 travel restrictions, testing and quarantine requirements apply to entry to the UK.
• Visa holders in the UK, who are unable to leave and have a visa expiring by 30 September 2021, can request additional time to stay in the UK, known as ‘exceptional assurance’.
• Visa holders who entered the UK outside the period of validity of their temporary vignette can apply to activate their visas from within the UK.
• Switching concessions, which allowed visa holders to switch their visa type from within the UK where they would normally have to apply from outside the UK, are no longer available.

Work and sponsorship

• Temporary right to work check policies are ending on 31 August 2021 and a new code of practice on preventing illegal working will be in effect from 1 July 2021.
• Employers can use the Coronavirus Job Retention Scheme, now extended until 30 September 2021, to furlough sponsored skilled worker employees.
• Sponsors are not required to report a change in job location for sponsored migrants working from home.
• Sponsors can continue to sponsor skilled workers who are absent from work without pay for 4 weeks or longer.
• Sponsors should preserve documentation and assist employees in extending their visas or switching to other categories.

EU Settlement Scheme

• Absences from the UK for COVID-related reasons might not affect eligibility for the EU Settlement Scheme, under a COVID-19 concession that the Home Office has revised following a legal challenge.

Settlement

• Absences due to the pandemic do not count towards settlement eligibility limits on days absent from the UK.

COVID-19 travel restrictions, testing and quarantine

All international arrivals to the UK (including UK nationals) must take a COVID test and get a negative result during the 3 days before the service on which they will arrive in England departs and complete a passenger locator form.

Children under 11 do not need to take a test before travelling to the UK.

Individuals who have been in a red list country in the 10 days before arriving in the UK will only be permitted to enter the UK if they are residents. Visitor applications made from red listed countries will not be decided until the country is removed from the red list.

Those who are resident in the UK and have been in a red list country in the 10 days before arriving will have to book and stay in a quarantine hotel for 10 days. The quarantine package, which can be booked here, includes a variant test on day 2 of one’s stay and a COVID-19 test on day 8 of one’s stay. It costs £1,750 for 1 adult, an additional £650 for each additional person aged over 11 and an additional £325 for each child aged 5 to 11.

Those who have been in an amber list country in the 10 days before arrival in the UK will still have to quarantine for 10 days after arrival, but this can be at their home, at a friend’s house or at a hotel of their choice. Those who have been in an amber list country in the 10 days before arriving in the UK will also have to book a test package for a variant test on day 2 of their stay and a COVID-19 test on day 8 of their stay. The test package costs £210.

Those who have only been in a green list country in the 10 days before arrival must book for a test on day 2 of their stay. Those who have only been in a green list country in the 10 days before arrival do not have to quarantine unless the result of their day 2 test is positive.

Children under 5 do not have to take the day 2 and day 8 tests.

Individuals who have not been in a red list country in the 10 days before arrival in the UK can reduce the quarantine period by paying for a test with an approved private test provider under the Test to Release scheme.

Those undertaking certain roles are exempted from some or all of the COVID-19 related travel restrictions.

Exceptional assurance allowing visa holders to stay in the UK

Those whose visas will expire by 30 September 2021, and who are unable to leave the UK, can request additional time to remain in the UK, known as ‘exceptional assurance’.

If a request is granted, exceptional assurance will act as a short-term protection against any adverse action or consequences after the visa has expired. If your visa conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your exceptional assurance. Exceptional assurance is not the same as being granted a visa.

‘Activating’ a visa where a temporary vignette was not valid on entry

A COVID-19 concession allows people who entered the UK, outside the period of validity of their temporary vignettes, to regularise their stay. Most people applying for UK visas from overseas will receive ‘temporary vignettes’; these are hardcopy endorsements in passports, valid for 30 days or 3 months, allowing successful applicants to travel to the UK. Once in the UK, they would collect their Biometric Residence Permit (BRP) card, their longer-term visa document.

In recent months, many people have entered the UK outside the period of validity of their temporary vignettes, which means that they never ‘activated’ the visas for which they made applications. In effect, they entered as visitors and are subject to the restrictions on visitors studying long-term or working.

The concession allows those who entered the UK when their temporary vignette was not valid to ‘activate’ their visas from within the UK.

Sponsors have to check the entry date of sponsored workers. HR teams might want to review that they have done so and use the COVID-19 concession to regularise any anomalies.

Right to work checks

A new code of practice on right to work checking came into effect on 1 July 2021. Please see Samar Shams’s HRZone blog post for a discussion of the practical effects of the changes.

Under a temporary policy in place until 31 August 2021, the Home Office is allowing for right to work checks on hardcopy documents to be conducted via video conference. The employee or prospective employee is to provide an electronic copy of their right to work documentation and show the original document during a video conference call with their employer.

Employers should make a note of the adjusted check.

Employers can undertake the online checking process, e.g. for employees with digital immigration status or a BRP card, via video conference and are allowed to so do beyond 31 August 2021.

For step-by-step instructions on checking right to work remotely, please see our article on the topic.

Sponsorship of skilled workers

Salary reductions and furloughing migrants

Skilled workers/Tier 2 migrants and other visa-holders can benefit from the government’s Coronavirus Job Retention Scheme.

Sponsors can reduce migrants’ salaries to the lower of 80% of their normal salaries or £2,500 per month, whichever is lower. Since 1 July 2021, the government may pay 70% of wages up to a cap of £2187.50 for the hours the employee is on furlough. Employers top up employees’ wages to ensure that the employees receive 80% of wages.

The salary reductions can be made regardless of whether migrant workers are being furloughed or not. Employers can claim the job retention scheme funds for those migrants being furloughed. The salary reductions have to be part of a company-wide scheme to avoid redundancies. The government guidance also states that all workers must be treated the same under these schemes. Migrant employees’ salaries must return to at least their previous levels once the COVID-19 measures have ended.

Sponsors must still report salary reductions within 10 working days. Please contact us for advice on reporting salary reductions.

Start date delays and quarantine

Home Office guidance states that where expected work start dates have passed, or certificates of sponsorship, which are the work authorisations assigned by sponsoring employers, have expired, it will still consider applications on a case-by-case basis. Normally sponsored workers must submit their visa applications within 3 months of their sponsor assigning their certificate of sponsorship.

Start date delays still need to be reported as usual.

Employers planning start dates should also take into account that overseas workers traveling to the UK from red or amber list countries will be subject to 10 days quarantine on arrival. Please see our discussion ‘COVID-19 travel restrictions, testing and quarantine’ above.

Absences

Sponsors need not report absences from work that are due to the coronavirus, including absences due to illness, self-isolation or inability to travel. The coronavirus immigration guidance provisions on absences are:

• Sponsors do not need to terminate sponsorship if an employee is absent without pay for four weeks or more; and
• Sponsors do not have to report students’ or workers’ absences that they have authorised.

Normally, sponsors of skilled workers and sponsors of students must report certain absences to the Home Office. For example, a UK employer sponsoring an Indian national to work as a Software Developer in the UK must report to the Home Office if the Software Developer misses their first day at work. A sponsor is also normally required to terminate sponsorship if the Software Developer takes 4 weeks or more of unpaid leave in a calendar year.

Sponsors must still report a salary reduction if they put a sponsored migrant on unpaid leave.

Reporting job location changes

The Home Office has confirmed to sponsors that they are not required to report job location changes relating to homeworking due to the coronavirus.

However, it is best practice to have on file documentation of the homeworking arrangements. If homeworking is not already provided for in employment contracts or otherwise documented on HR files, then it would be best to put on file documentation that the change was exceptionally and temporarily required due to the Covid-19 pandemic.

Reporting termination and insolvency

Where a sponsor terminates the employment of a skilled worker, they must report the termination of sponsorship within 10 working days.

Sponsors should report insolvency within 20 working days of going into administration or receivership.

What steps can sponsors take?

Sponsors should document their decision-making and arrangements as much as possible and save that documentation to the relevant sponsored skilled workers’ personnel files.

It is also worth writing to the coronavirus helpline at CIH@homeoffice.gov.uk and saving that correspondence down to the relevant personnel file. Note that sponsors will need a visa-holder’s consent should they wish to correspondence about their particular case with the Coronavirus helpline.

EU Settlement Scheme COVID-19 absences concession

On 10 June 2021, the Home Office revised its published policy on applying to the EU Settlement Scheme, where an applicant’s residence in the UK has been affected by coronavirus.

Under the concession, coronavirus-related reasons are considered ‘important reasons’ such that if they result in an absence from the UK of up to 12 months, an applicant will still be found to meet the EU Settlement Scheme residence eligibility criteria.

Coronavirus-related reasons include not only being ill or caring for an affected family member, but also remaining outside the UK to benefit from fewer coronavirus restrictions elsewhere, preferring to work or run a business from home overseas or preferring to rely on the support of family and friends overseas if you would have been unemployed in the UK.

The concession also allows the following:

• An absence will be disregarded where it was not intended to exceed 6 months but did so for coronavirus-related reasons, if the absence did not exceed 12 months.
• Where an absence exceeds 12 months because coronavirus meant that the applicant was prevented from or advised against returning to the UK within 12 months, the Home Office will consider an applicant’s continuous qualifying period ‘paused’ from the time the absence reached 12 months. The Home Office will consider the continuous qualifying period to resume from the point the applicant returns to the UK.
• Where an applicant already has one absence of up to 12 months for an important reason, an additional absence exceeding 6 months in a 12-month period for coronavirus-related reasons will not break continuous residence. Either absence can exceed the 12-month maximum if coronavirus meant that the applicant was prevented from or advised against returning to the UK within 12 months.
• Those who hold pre-settled status which will expire before they are able to complete the continuous qualifying period of residence will be able to apply for a further grant of pre-settled status in some circumstances.

Applicants must provide evidence of their reasons for absences falling under the coronavirus concession.

It is possible that the Home Office will accept applications made under the COVID-19 concessions after the 30 June deadline to apply for the EU Settlement Scheme, where applicants were not aware of the concession before the deadline. The concession was revised only 20 days before the EU Settlement Scheme application deadline, after the Home Office lost a legal action challenging the previous, narrower concession.

The Home Office allows for applications to be made after the deadline where there are reasonable grounds for the lateness. The Home Office guidance to its EU Settlement Scheme caseworkers provides examples of what counts as reasonable grounds for missing the deadline, including that the applicant ‘lived in the UK for a significant period of time and having done so did not realise they must still secure status under the EU Settlement Scheme’. It is possible that the Home Office would similarly accept late applications from EEA nationals and their family members who are taking advantage of the revised concession, on the basis that they were not aware of the revision to the concession in time to make their applications before the deadline.

Eligibility for settlement

An eligibility requirement that cuts across most immigration routes is the requirement not to be absent from the UK for more than 180 days in any 12-month period during the qualifying period for settlement, which is usually 5 or 3 years. Absences due to the global pandemic will not count towards the 180-day limit on absences in any 12-month period.

For migrants applying to enter or remain in the UK on the basis of family life, the Home Office COVID-19 guidance for visa applicants states that ‘If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked.’ The extent of the protection afforded by the Home Office’s coronavirus immigration guidance will unfold over several years, as affected sponsored skilled workers become eligible for settlement.

Documentation is crucial in the context of eligibility for settlement. The required documentation might be difficult to gather as many who fall ill will not be hospitalised or otherwise receive treatment. Documentation of disruption to travel arrangements might be slightly easier, for example airlines might provide written notification of flight cancellations. It is unclear how a reluctance to fly during the global pandemic, rather than an imposed travel disruption, would be treated. In any case, visa-holders should save all relevant documentation now. It will be harder to collate later.

Please note that this article does not constitute advice. For advice on coronavirus and immigration, please contact Immigration and Global Mobility team members Samar Shams at samar.shams@spencer-west.com or Talitha Degwa at talitha.degwa@spencer-west.com.