Tier 2 sponsors, which includes businesses, public sector organisations, charities, education providers and others, are naturally concerned about various issues arising from the coronavirus (COVID-19) pandemic. Here, we consider the guidance issued by the government to date, along with other relevant considerations.
We are updating this page as further information is released by the Home Office that is relevant to Tier 2, and also Tier 5, sponsors. Information for Tier 4 sponsors is here. General information on visa applications, appointments and other aspects of the UK’s immigration and nationality system is here.
The information on our website is for general guidance only. Please refer to material produced by the government for further detail.
Guidance and information for Tier 2 and 5 sponsors from the Home Office to date
The Home Office initially released information about the pandemic on 17 February 2020, updated on 27 February. This can be found here.
On 24 March 2020 the Home Office released further guidance.
On 25 March 2020 two factsheets were published (these are dated 24 March):
- Coronavirus (COVID-19) factsheet: visa holders and short-term residents in the UK; and
- Coronavirus (COVID-19) factsheet: visa customers outside of the UK.
On 26 March 2020 the Home Office sent out this email containing further information on absences and home working.
We have also had discussions with senior Home Office officials and some of the information provided is included in our guidance below.
The Home Office’s current position is that sponsors should, where possible, try and comply with the sponsor duties set out in the Sponsor Guidance. However, we have been told that a sponsor that cannot comply due to the pandemic, but is taking a reasonable and pragmatic approach, will not be penalised.
This position is supported by answers provided by Kevin Foster MP, Minster for Future Borders and Immigration, in parliament on Monday 23 March 2020:
“We are very clear that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control…We are looking at further measures…to ensure that no one is penalised because they followed the advice and did what they could to protect our NHS and save lives.”
We are finding that Home Office staff are generally willing to exercise some flexibility in processes. For example, allowing sponsors to email information instead of posting it to them. However, it is important that sponsors check the position on a case by case basis until more detailed guidance is issued.
Our current guidance for Tier 2 and 5 sponsors
Do sponsors need to take any action regarding worker absences?
During the pandemic, if workers who are sponsored under Tier 2 or Tier 5 are absent from work for any reason that is ‘due to the coronavirus outbreak’, sponsors should treat this as an authorised absence. They do not have to report anything to UK Visas and Immigration (UKVI) or withdraw sponsorship.
The Home Office has confirmed that it ‘recognises the current situation is exceptional and will not take any compliance action against…employees who are unable to attend…work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor…employees despite absences for this reason’.
We would recommend that sponsors keep some evidence – for example, email communication with the worker – to demonstrate that the period of absence was due to coronavirus related concerns.
Can sponsored workers work from home and does this need to be reported to UKVI?
If working from home is ‘directly related to the pandemic’, this is permitted and does not have to be reported to UKVI.
Can sponsored workers be placed onto the Coronavirus Job Retention Scheme?
The government published further guidance for employers on the Coronavirus Job Retention Scheme on 26 March 2020. You can find this here. The guidance does not say that employers are restricted from being able to place sponsored workers onto the scheme and the Home Office has also confirmed this to us.
At the moment, the Sponsor Guidance has not been updated to confirm that absences from work because sponsored workers have been placed onto the scheme are permitted. The Home Office has stressed a number of times that it will not take compliance action in relation to decisions sponsors make on absences that are due to the pandemic. As such, we are not expecting there to be any issues if a sponsor places a sponsored worker onto the scheme.
If a sponsored worker is placed on the scheme and they are to be paid at a reduced rate, this will need to be reported in the usual way. At the moment, there is no indication that sponsors may pay a sponsored worker who has been placed on the scheme less than the current appropriate rate requirements for sponsored roles.
Can sponsors grant requests for general unpaid leave?
In addition to annual leave, sponsored workers have always been entitled to leave as outlined in paragraph 26.26 of the Sponsor Guidance (this covers maternity leave, sick leave etc. and associated reductions in pay). Sponsors have also always been allowed to permit sponsored workers to take up to four weeks’ unpaid leave during a calendar year.
The current Sponsor Guidance states that if a sponsored worker takes more time off on an unpaid basis, the sponsor must cease to sponsor the worker. The Home Office has confirmed that it is relaxing this for now and has stated that ‘sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when an employee is absent from work without pay for four weeks or more’.
Can work hours and pay be reduced?
This has always been permitted providing the new rate is not below current appropriate rate requirements for sponsored roles and the role/hours otherwise meet the requirements set out in the Sponsor Guidance.
What if sponsored workers are made redundant?
In such cases, the sponsor would need to report the withdrawal of sponsorship in the usual manner. UKVI will then eventually curtail the sponsored worker’s leave to remain (usually to 60 days). If the sponsored worker is able to find a new role and sponsor that can issue a CoS, they will be able to apply for further leave to remain. If they are unable to do so, but are also unable to leave the UK, they should be able to benefit from the provisions set out here.
Do sponsors need to keep a record of absences of sponsored workers?
Sponsors have always been required to keep a ‘record of migrant’s absences’ as referred to in Appendix D of the Sponsor Guidance.
What if the sponsored worker’s start date is delayed?
At the time of writing, the information we set out here has not been updated by the government. However, we would expect the Home Office to exercise discretion if the start date is delayed due to the pandemic.
Has the Home Office released any information to assist individuals who are unable to make an application from inside the UK, or are unable to leave the UK to make an application overseas, or are overseas needing to apply to come to the UK?
Yes, we have covered the information that has been provided to date here.
Do employers still need to perform right to work checks?
Yes, but where possible employers should use the online right to work process.
If this is not possible, we do not recommend that employers require anyone to come to work for a right to work check to be performed if this will breach social distancing rules.
Employers should instead do their best and perform right to work checks using video conferencing facilities. The Home Office has not yet confirmed that doing so will enable the employer to establish a statutory defence, if needed, but it would clearly be unreasonable for the Home Office to expect employers to flout social distancing rules.
Do employers still need to comply with employment legislation?
Yes. It is important that all decisions are taken in accordance with employment, and any other relevant, legislation.
There may also be significant reputational consequences for employers that do not act in an appropriate manner during the pandemic.
Are things likely to change?
This is an evolving situation. We have been told that the Home Office is working urgently to prepare guidance for sponsors regarding the numerous issues relating to the pandemic. However, it may be some time before they can complete this work.
In the meantime, sponsors should take reasonable and pragmatic decisions concerning issues that are directly related to the pandemic and we would recommend that the reason for decisions are noted. Evidence supporting decisions should be obtained and kept.
We will be updating our website as and when any further guidance is issued by the government which may be relevant for sponsors.
How we can assist
If you are looking for general information, please review the guidance provided by the government which we refer to above. The government has also set up a Coronavirus Immigration Help Centre and you can find the details at the bottom of the page here.
If you are seeking legal advice and assistance regarding a specific sponsor licence matter during this time, please complete our enquiry form below and one of our team will be in contact with you.