Since the start of the pandemic, COVID-19 has had a significant impact on the UK's immigration system and particularly on those seeking to move to the UK. We have set out below some of the key updates that both businesses and individuals should be aware of.
Individuals with limited leave in the UK are expected to take all reasonable steps to leave the UK, or apply to regularise their stay in the UK, before their leave expires. If they do not submit a new immigration application or leave the UK before their leave expires they will usually become overstayers. This has numerous consequences, including the fact that the individual will no longer have the right to live or work in the UK and it is likely to prejudice future immigration applications. Employers also risk civil penalties and the loss of their sponsor licence if they continue to employ someone who no longer has the right to remain in the UK. In certain circumstances employers may even face criminal sanctions.
However, those with leave due to expire between 1 March 2021 and 31 March 2021 who are unable to leave the UK due to the pandemic (for example, if they have are required to self-isolate after receiving a positive COVID-19 test result, or if flights to their destination have been suspended), can apply to the Home Office for additional time to stay, known as 'exceptional assurance'.
Exceptional assurance does not grant a migrant additional leave, but acts as short-term protection against any adverse consequences that would otherwise apply to someone who is found to have overstayed beyond the expiry of their leave. For the duration of the exceptional assurance period, the migrant is allowed to continue to live under the conditions of their previous leave, including working for their employer, studying or renting accommodation.
An exceptional assurance request can be made by emailing email@example.com with "Request for assurance" in the subject heading. The migrant will need to provide the following details in their application: full name, date of birth, nationality, Home Office/GWF/any other reference number, type of visa, expiry date of visa, the reason for their application and evidence showing the reason they cannot leave (for example, confirmation of a positive COVID-19 test result or a confirmed flight ticket for a date after their leave expires).
Businesses who employ/sponsor migrants with leave due to expire before 31 March 2021 should be alert to any issues which may prevent the individual from submitting a new immigration application or from leaving the UK by 31 March 2021 and ensure any employees at least make an exceptional assurance application as soon as possible, if it is necessary to do so.
In some cases, migrants who are currently in the UK and who wish to submit an immigration application under a different immigration category to their existing leave may usually be required to return to their home country and submit their application from there, rather than from within the UK. However, under a current COVID-19 concession, migrants who are already in the UK may be apply to switch into a new immigration category from within the UK. Migrants will still need to meet all the requirements of the route they are applying under and pay the application fee. For example, in some cases, a visitor may be able to apply to switch into the Skilled Worker category from within the UK. We recommend seeing advice before relying on this concession.
Starting work before an application is approved
In 2020, the Home Office introduced a concession which permitted those applying under Tier 2 from within the UK to begin work in the UK before their immigration application was approved. However, the concession, which was put in place to help businesses through the pandemic, has now been revoked.
Under the current rules, applicants waiting for a decision in relation to a work immigration application (including Skilled Worker, Health and Care Worker, Intra-company Transfer, T2 Worker and T5 Temporary Worker leave) may only start work in the UK before receiving the decision on their application if:
- They have been assigned a Certificate
of Sponsorship ("CoS") and:
- They have applied under the Health and Care category; or
- The CoS was assigned before 1 January 2021; and
- Their application was submitted before their current leave expired and they can show their sponsor evidence of this; and
- The job they intend to start is the same as the one listed on their CoS.
Those with a CoS assigned on or after 1 January 2021, and who are not applying under the Health and Care visa, must wait until their immigration application has been granted before starting work.
Employers should be aware of the above conditions. Allowing a migrant to start work without approved leave (unless the above conditions are met) would constitute employing that person illegally.
Applications submitted in country can take weeks or even months to process if they are submitted using the standard route. For an additional fee, applicants can purchase the Priority or Super-Priority Service and their application should ten be processed within five days or 24 hours.
Priority and Super-Priority services across both overseas and UK locations were largely suspended at the start of the pandemic, but many have now resumed.
Priority and Super-Priority services are currently available for all immigration applications made from within the UK, except for those applying for permission to stay as an Investor or for those applying as the dependent child/partner of an Investor.
Work related visa applications submitted from overseas usually take around 15 working days to process using the standard service although there are still delays in some countries due to COVID-19. Employers who are planning to sponsor a new employee would be wise to check whether any priority services are available in the migrant's home country and how this could impact upon their timescales.
Right to work
The COVID-19 concession in relation to right to work checks, which was introduced on 30 March 2020, remains in place.
The concession aims to make it easier for employers to carry out right to work checks virtually by:
- Allowing checks to be carried out over video calls; and
- Allowing job applicants/existing employees to send scanned documents/a photo of documents to be checked, instead of original documents.
The Home Office will update its guidance when the concession ends. After that date, right to work checks must be carried out following the normal procedure. In addition, employers will be required to carry out retrospective checks on existing employees who started work whilst the concession was in place, or who required a follow-up check during this time.
The retrospective checks must be carried out within eight weeks of the COVID-19 measures ending. If, at the point of carrying out the retrospective check, an employer finds that their employee does not have permission to be in the UK, they must end their employment.
See our previous article for further information on carrying out right to work checks whilst the Covid-19 concession is in place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.