Immigration compliance during Covid-19

8 Apr 2020 By Anne Morris

Anne Morris outlines which rules have been changed or relaxed, including right to work checks and visas

Right to work checks

The Home Office announced on 30 March that employers can now conduct right to work checks using video links. This temporary measure allows workers to provide digital copies of their documentation rather than submitting originals so employers do not need to verify the individual’s identity in person. 

Employers whose workplaces have closed because of the lockdown can now ask the worker to send a scan or photograph of their document electronically. Once received, employers need to verify via video link that the individual is the same person as per the ID, and request that the individual show the original document during the call. Copies and records then need to be made and kept in the usual way, with the addition of marking up the following: ‘Adjusted check undertaken on [insert date] owing to Covid-19.’ 

If the individual cannot provide an acceptable form of documentation, employers should use the Home Office’s online employer checking service. Businesses can also use the online service for migrant workers with a biometric residence permit, a biometric residence card, or pre-settled status or settled status issued under the EU Settlement Scheme. The worker does, however, have to give their permission for the employer to view their details on the system.

If the worker is positively identified, employers should make and keep a copy of the online right to work check by printing or taking a screenshot of the record and storing this securely either electronically or in hard copy. They should also sign and date the record if there is no date on the print out. 

Businesses will have to perform full checks retrospectively on employees who were onboarded under the coronavirus measures. These must be carried out within eight weeks of the temporary measures ending, with records of both checks retained. Retrospective checks will not be needed for individuals who have been subject to a full check in the prescribed manner. The Home Office has said it will not take any enforcement action against employers that conduct an adjusted check and follow this up with the retrospective check.

Beyond these changes, the right to work regime remains in place. Failure to perform right to work checks correctly can result in Home Office enforcement action, including fines of up to £20,000 per illegal worker and sponsor licence penalties.

Tier 2 sponsor licence duties 

Sponsors are not required to report coronavirus-related absences of Tier 2 or Tier 5 sponsored workers. Such absences are to be treated as authorised. Sponsored workers who have been absent as a direct result of the coronavirus outbreak will not be subject to enforcement action. Sponsors also do not need to withdraw sponsorship if an employee is absent from work without pay for more than four weeks. 

However, despite the Home Office advice that no enforcement action will be taken against sponsors if they authorise coronavirus absences during the crisis, they should continue to keep absence records for their migrant workers, whether in relation to being sick, unable to travel or if their place of work has closed.

While sponsors usually have to report a change of working location for their Tier 2 workers, where sponsored workers have to work from home because of the current situation, their sponsors do not have to update the Home Office. 

Again, sponsors should maintain a record and ensure they have their workers’ up-to-date contact details.

Sponsors continue to be able to reduce sponsored workers’ pay and/or working hours provided they do not breach the relevant Tier 2 visa threshold.

Further Home Office guidance is expected on issues such as:

  • Whether the minimum SOC code threshold still applies if you reduce a visa holder’s salary and/or hours.
  • What to do if you have allocated a restricted certificate of sponsorship but the new hire is unable to travel to the UK within the three-month period because of travel restrictions.
  • Whether furloughed migrant workers qualify under the four-week absence exception, since they will be paid during this time.
  • Whether emergency support will be given in respect of changing Level 1 users; currently, if your Level 1 user is unwell and not able to operate the SMS, you can request to add another Level 1 user. However, the Home Office has just closed their priority service line, which would have allowed this kind of request to be processed within a day or two for a fee of £200. Standard processing times for this kind of request would normally take four to eight weeks.

UK visas extended

UK visa holders unable to leave the country because of travel restrictions or self-isolation can apply to have their visa extended until 31 May 2020. The emergency measures apply to those with UK leave to remain expiring between 24 January 2020 and 31 May 2020. 

The extensions will not be automatically applied. The visa holder will need to contact the Home Office coronavirus immigration team to update their records. Employers should check their workers’ visa validity and ensure any required applications for extensions are made in accordance with the Home Office guidance. 

Those whose visas are extended under the temporary provisions will be expected to leave the UK as soon as possible once travel and border restrictions are lifted.

Visa switching 

Existing visa holders who would normally have to leave the UK to apply for a longer-term visa can now do so from within the UK. Applicants will remain subject to the usual eligibility criteria and fees of the route they are applying for. 

Anne Morris is a lawyer and managing director of DavidsonMorris

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