Tier 2 Sponsor Licence Holders: What you need to know during the Coronavirus crisis
Although the Home Office has relaxed some of its compliance rules for Tier 2 Sponsor Licence holders, the fact remains that licence holders do remain subject to their normal duties and must continue to adhere to the normal compliance rules during this time of crisis. This guidance sets out the latest government guidance, including that in relation to furloughing sponsored workers, to help your organisation remain compliant with its sponsor duties during these unprecedented times.
Sponsor Reporting Duties
The Home Office has relaxed some sponsor reporting duties in relation to Tier 2 visa absences and sponsored workers who are currently working from home. In normal circumstances, sponsors are obliged to notify their Home Office if a sponsored worker is absent from work for more than ten consecutive days. The Home Office have confirmed that, under a new exemption sponsors will not be required to report absences of Tier 2 or Tier 5 sponsored workers where these relate to Covid-19. Additionally, any absence on this basis will be considered as being authorised meaning that the Home Office will not take any enforcement action against absent sponsored workers.
The Home Office has not relaxed any rules in relation to record keeping and sponsors must continue to retain accurate records relating to any absence from work during the crisis, including homeworking. When it comes to homeworking, a sponsor’s normal obligation to advise the Home Office of a change in working location will not apply. Sponsors must however continue to maintain up to date contact details for any sponsored workers who are not physically present at work.
Where employers have issued Certificates of Sponsorship (COS) but the worker has been delayed in applying for their visa, the Home Office has confirmed that it will exercise some discretionary flexibility. Workers will not be prohibited from applying for a visa and where an employer start date has altered due to the current crisis, any COS which would ordinarily then be invalid may still be accepted. Applications will be considered on a case-by-case basis.
UK visa holders unable to leave the UK due to the crisis can apply to have their visas extended until 31 May 2020. The rule applies for leave expiring between 24 January 2020 and 31 May 2020 where the visa holder is unable to return home due to coronavirus travel restrictions or self-isolation. 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.
Furloughing sponsored workers
On 3rd April 2020, the Home Office announced that sponsors may furlough sponsored workers and temporarily reduce the pay of sponsored employees to the lower of either 80% of their usual salary or £2,500 per month. Usual employment laws relating to equality and discrimination will still apply when it comes to the selection of visa national employees for furlough leave and employers must have a genuine business case necessitating the decision to place any sponsored worker on furlough leave.
Sponsors will also be able to reduce sponsored workers’ pay and/or working hours during the course of the current crisis provided they do not breach the relevant Tier 2 visa threshold and provided that there is a genuine business reasons driving the variation to contract.
When it comes to unpaid leave, a sponsor would usually have to withdraw sponsorship if a worker takes more than four weeks’ unpaid leave in any one year. Given that the Home Office has said that they will not be taking enforcement action against sponsored workers who are absent from work it may be the case that sponsors will not have to withdraw sponsorship if a worker takes unpaid leave in excess of the usual 4 week period because of Covid-19. This is a grey area however and employers should take advice in respect of any individual cases.
Can we help you?
In spite of some of the normal rules being relaxed, immigration compliance should remain a concern for sponsor licence holders during the current crisis. When considering business continuity and workforce planning, it also prudent to plan ahead in respect of visa applications for travel to the UK when this becomes possible.
Howarths can assist employers in hiring and onboarding workers to commence remote work overseas as well as the use of compliant right to work checks on a remote basis.
If you would like any advice on any specific issues, including how to future proof your business against potential immigration and recruitment issues please contact our Head of Employment Law and Business Immigration, Charlotte Geesin at email@example.com