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 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 provides an overview and is for general guidance only. Please refer to material produced by the government for further detail.
Latest guidance and information from the Home Office
The Home Office has a dedicated section of its website for immigration issues related to COVID-19. This includes specific information regarding sponsorship under Tiers 2 and 5.
The Home Office’s approach to immigration issues arising from the pandemic is updated regularly and we recommend that anyone seeking guidance checks the above information first of all.
In our general information briefing, you can also find information on how, since February 2020, the Home Office has developed its response to immigration issues arising from the pandemic.
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.
We have provided information below regarding some of the main questions we are receiving.
Our current guidance for Tier 2 and 5 sponsors
Do sponsors need to take any action regarding worker absences?
The Home Office has confirmed that it will not take enforcement action against sponsors who continue to sponsor workers despite absences due to coronavirus. It has also confirmed that such absences do not need to be reported.
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 due to coronavirus, this does not have to be reported to UKVI.
What is the position regarding reduced pay and furlough leave?
The government has confirmed that:
‘If you cannot pay the salaries of sponsored employees because you’ve temporarily reduced or ceased trading:
You can temporarily reduce the pay of your sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower. Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended’.
Sponsors will still need to report that a worker has been placed on to the Coronavirus Job Retention Scheme and to report the reduction in salary. Reports should be made within the time-frame set out in the Sponsor Guidance where possible.
The Coronavirus Job Retention Scheme is not defined as ‘public funds’ in the Immigration Rules (Part 6 ‘Interpretation’). Therefore, migrants who are placed on furlough will not be in breach of their conditions of stay. However, it is important that they do not also claim any benefits which are defined as public funds.
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 with a 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 a sponsor has assigned a Certificate of Sponsorship (CoS) and the sponsored employee has not yet applied for a visa
The Home Office has stated:
‘The employee…will still be able to apply for a visa. The start date for the…employment stated on the CoS…may have changed. We will not automatically refuse such cases. For example, we may accept a CoS…if they have become invalid because the employee…was unable to travel as a result of coronavirus. We will consider this on a case by case basis.’
Employees who are waiting for an application to be decided
The Home Office has confirmed that employers can allow an employee to commence work providing a CoS has been assigned, the role the employee will perform is the same as on the CoS and the employee has submitted an application for further leave to remain before their current leave expires. This only applies to employees who are in the UK.
The Home Office has stated that if the employee’s application is eventually refused, their employment must be terminated.
What if the sponsored worker’s start date is delayed?
Generally the information we set out here applies to delays. However, on 3 April 2020 the Home Office updated its position to state:
‘If you have issued a Certificate of Sponsorship (CoS) or a confirmation of acceptance for studies (CAS) and the sponsored employee or student has not yet applied for a visa
The employee…will still be able to apply for a visa.
The start date for the…employment stated on the CoS…may have changed. We will not automatically refuse such cases.
For example, we may accept a CoS…if they have become invalid because the employee…was unable to travel as a result of coronavirus. We will consider this on a case by case basis.’
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 some of the measures have been relaxed on a temporary basis. Please see the advice issued by the government on 30 March 2020.
It is important to pay particular attention to the retrospective checking procedures. Compliance will ensure that a statutory defence against illegal working sanctions can be put forward.
Do employers still need to comply with employment legislation?
Yes. It is important that all decisions are taken in accordance with employment legislation, and any other relevant laws.
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 and we can expect there to be further changes.
Where there is no clear guidance and sponsors are unable to obtain a clear answer from the Home Office in time, they 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.
First published: 17 March 2020
Last updated: 01 June 2020