Immigration law obligations for employers

The Home Office has issued a steady stream of commentary on immigration issues arising from the coronavirus pandemic. However, the information changes regularly, and can appear contradictory, because immigration law is so complex.

In this article, I deal with a few of the immediate questions I have seen from employers with concerns about how to handle their immigration law obligations during the outbreak.

Right to work documents: temporary measures

All employers have a duty to make sure that the people they employ have a right to work in the UK, or risk fines or prosecution. You can protect your business by checking and copying the right documents from your employees before they start work. For some employees, you need to repeat checks at a later date (for example, if they have limited leave to remain in the UK).

The Home Office has made temporary changes to the procedure you must follow to check documents. You can now check documents via a video call or receive scanned documents from a job applicant or employee. Note that after the temporary measures end, you must still to a “retrospective check” of original documentation.

Right to work checks: Employer Checking Service

If you are due to check documents for an employee who has made an application to the Home Office, but has not yet received a decision, you can use the Employer Checking Service to verify their continuing right to work. You will need to do a further check 6 months later.

Sponsored employees

If you sponsor employees under the Points-Based System, you would normally have strict obligations to employ them on the terms set out in the Certificate of Sponsorship (“COS”). The COS includes details of an employee’s job role, location and salary.

The Home Office has set out guidance about its policy towards sponsors during the pandemic.

Sponsored employees: relaxed reporting requirements

Provided they are performing the same job role, you can assign sponsored employees to work from home without having to report this to the Home Office as a change of circumstances.

You can include sponsored employees in any furlough scheme that you introduce (paying employees 80% of their normal salary as an alternative to redundancy). You must treat all your employees the same. Sponsored employees must return to their normal role and salary at the end of the scheme. The furlough scheme does not count as “public funds”, so employees on furlough are not in breach of their conditions of leave.

You do not have to report absences over 4 weeks of sponsored employees that are due to coronavirus.

Sponsored employees: stranded overseas

You might need to report delayed start dates for sponsored employees using the Sponsor Management System (for example, new overseas employees who are unable to travel to the UK within 28 days of their start date because of coronavirus restrictions).

If a new employee is overseas and is unable to make their Tier 2 visa application within 3 months of the issues of their COS, you should report this to the coronavirus helpdesk, and ask for the validity of the COS to be extended.

If you have existing sponsored employees who cannot return to the UK because of travel restrictions, and they cannot return before their existing leave expires, they could be hit by the “cooling off period” that normally prevents Tier 2 visa-holders from applying to re-enter the UK within 12 months of the expiry of their last leave. There is no set Home Office policy about this issue at the moment, but you should consider logging concerns with the coronavirus helpdesk and the business helpdesk, to assist in future applications where discretion might be required.

Sponsored employees: switching in the UK

The Home Office has said that applications for UK immigration status that would usually have to be made from outside the UK may temporarily be made within the UK if applicants “meet the requirements of the route [they] are applying for and pay the UK application fee”.

This means that some Tier 2 applicants could apply to “switch” from inside the UK. It is not clear whether this means that employers must issue a restricted COS to such applicants. The Home office site that sets out previous allocations of COS has not been updated since the January 2020 allocation.

This concession appears only to apply to people whose leave expires before 31 May 2020, at least for the time being.

Advice and planning

You should keep a close eye on the Home Office coronavirus policy website, and ensure that your interactions with the Sponsor Management System and associated helpdesks are well-documented.

I advise businesses and individuals about immigration law across the South of England including London, Guildford, Woking, Basingstoke, Winchester, Southampton and Bournemouth. If you have other questions about how to manage your immigration law obligations as an employer, please contact me.

Kitty Falls

Tel: 07752722292

24 April 2020

Image by Chris Stermitz from Pixabay 

Leave a Reply