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CDS Mayfair: Immigration

Apr 07 2020

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Our immigration team at CDS Mayfair have published a Q&A series covering COVID-19 immigration related issues for sponsors, workers, students and other migrants. Check back for updates and should you require advice or assistance, please do not hesitate to contact our immigration team on the details set out below.


CORONAVIRUS (COVID-19): AN IMMIGRATION LAW Q&A


The UK immigration system has been particularly hard hit by the widespread disruption caused by COVID-19, and in particular, by the significant restrictions that have been placed on all forms of travel. Unfortunately, the UK immigration authorities have been slow to react to the challenges thrown at them by this pandemic, leaving those affected wondering where they stand in these unprecedented times.


Over the course of the last fortnight, the Home Office have begun to issue a series of COVID-19 related policies to tackle the issues faced by migrants and sponsors alike. To date however, these policies reveal a lack of joined-up thinking between the UK Government departments and in some cases, have raised more questions than they answer. 


With that in mind, the immigration team at CDS Mayfair have compiled a Q&A piece highlighting some of the most common issues we anticipate people experiencing in light of COVID-19. Please select a topic that interests you to find out more. We at CDS Mayfair remain ready to help advise and assist you with any queries you may have in respect of your corporate or private immigration matters, including those related to COVID-19.


Please note, the content of this Q&A is up to date at the time of drafting (6 April 2020), but the situation remains fluid and further updates are anticipated. The questions and answers on this page are intended for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific needs and circumstances.



Tier 2: Sponsors and Workers

Q1: Can I apply to the Coronavirus Job Retention Scheme to furlough (put on Furlough Leave) my Tier 2 sponsored employee(s) and have their salary subsidised without this breaching the conditions of my Tier 2 sponsor licence and / or the employee’s visa?



A: The UK Government has introduced the Coronavirus Job Retention Scheme (‘CJRS’) as a temporary measure to allow employers to ‘furlough’ employees (put them on temporary paid leave) in response to the restrictions imposed on business’ operations in light of COVID-19. The CJRS is due to run for at least 3 months starting from 1 March 2020 and it makes provisions, through HMRC, for the UK Government to subsidise the earnings of furloughed employees: up to 80% of pay, capped at £2,500 gross per month, per employee.


Our employment law department at CDS Mayfair has provided a useful summary of this new scheme for employees and employers, which can be found on our LinkedIn page here.


On 3 April 2020, the UKVI released very limited guidance (3 short paragraphs) on its website in respect of sponsors’ ability to pay sponsored employees a reduced salary where their business has temporarily reduced or ceased trading. Unfortunately, this guidance is incredibly sparse, so much so it does not even explicitly state whether sponsors may utilise the CJRS. Thankfully, clarity on this point was provided on 3 April 2020 by the Immigration Law Practitioners Association (‘ILPA’), who circulated an email to practitioners confirming sponsors and sponsored migrants are eligible to utilise the CJRS.  What remains unclear and requires urgent clarification is the detail governing the interplay between the CJRS and the Tier 2 sponsors’ and employees’ duties. Without such detail it remains impossible to understand how the CJRS can be safely utilised by Tier 2 sponsors and their sponsored employees. We have set out below our analysis of the position as it stands, which we will endeavour to update as soon as further guidance becomes available.


Ordinarily, Tier 2 migrants must be paid a certain minimum salary (or an appropriate rate for the job) at all times in order to maintain their visa. The minimum required annual salary is specified for each job category within the Immigration Rules. It must either meet this threshold, or the following relevant threshold, whichever is higher: £20,800 for a ‘new entrant’ Tier 2 (General) worker; £30,000 for an ‘experienced hire’ Tier 2 (General) worker or £41,500 for a Tier 2 (Intra Company Transfer) worker.


If a sponsored worker’s salary drops below the required threshold, the sponsor may be required to terminate their sponsorship of the employee. Should the Tier 2 employee cease to be sponsored by their employer, they risk their visa be cancelled or curtailed and thus, losing their ability to remain lawfully in the UK (unless they were able to make an in-time application to apply for another job or to switch into another visa category).


Under the CJRS, a furloughed sponsored worker’s salary will be reduced to 80%, or a maximum of £2,500 gross per month, whichever is lower. Unless the employer tops-up the furloughed employee’s wages, the maximum annual salary of a Tier 2 worker will therefore be £30,000. This is lower than the required amount for many Tier 2 sponsored workers, as specified above. 


The guidance issued by the UKVI on 3 April 2020 gives sponsors, whose business has temporarily reduced or ceased trading, permission to pay a reduced salary to their Tier 2 employee: 80% of their salary or £2,500 gross per month – whichever is the lower of these options. If a sponsor intends to pay their employees a reduced salary in line with this guidance, they must also implement a company-wide policy aimed at reducing redundancies, in which all workers are treated equally. The reduction in salaries must also be temporary (no specific timeframe is stipulated) and employees’ pay must return to at least their previous levels once these arrangements have ended.


 



Q2: I have a workforce of sponsored and non-sponsored employees. Can I decide to only put my Tier 2 employees on Furlough Leave?



A: The usual principles of employment law apply when selecting who within your workforce should be put on Furlough Leave. Care should therefore be taken to ensure your selection process does not fall foul of discrimination law. The wording of the guidance for Tier 2, 4 and 5 sponsors seeks to ward against this risk of discrimination by stipulating that any salary reductions “must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same”.


 



Q3: What are the immigration-related risks I should be aware of when putting my sponsored employees on Furlough Leave and paying them 80% of their salary?



A: The standard UKVI guidance states that if a sponsor wishes to reduce a migrant’s salary to a lower rate than that stated on their CoS, then the new salary rate must still be sufficient to meet the required salary threshold for their category of employment, as stipulated within the immigration rules.


The guidance of 3 April 2020 does not clarify whether this rule still applies. Specifically, the guidance of 3 April 2020 does not clarify whether some or all categories of Tier 2 workers are eligible to benefit from CJRS and how each of their salary thresholds interact with this new salary reduction policy. The lack of clarity on this point is particularly concerning for those Tier 2 migrant workers whose salary requirements are set above £30,000 p.a. – the maximum subsidised salary that the UK Government will pay under the CJRS and that is permitted under this guidance. Employees who fall into this salary category whose employers are not able or willing to top-up their salary should, if possible, await further guidance from the UKVI before accepting an employer’s offer to be furloughed and/or be paid a reduced salary, to avoid being caught out by these provisions and unintentionally jeopardising their leave.


The guidance should, as other Home Office COVID-19 guidance has sought to do, also provide an assurance that paying a Tier 2 worker a reduced salary, as detailed above, through the CJRS or otherwise, will not be regarded as a breach of the employee’s leave or the sponsor’s duties – either in the short or long term.


 



Q4: Will I need to prove that I have temporarily reduced trading in order to apply CJRS?



A: The guidance of 3 April 2020 does not explain what must be evidenced to show that a business has temporarily reduced or ceased trading. The guidance is also silent on how the UKVI (or HMRC) will treat these claims as the CJRS is not yet live. Many employers have applied to the CJRS and HMRC have reserved the right to audit businesses later on.



Whilst we await further guidance, we recommend that sponsors carefully consider whether there is a genuine, temporary reduction in work and if so, whether the CJRS is the best solution for their business, bearing in mind furloughed employees are not permitted to work (including remotely) whilst on furlough leave. 



The only possible insight on what evidence may constitute a reduction/cessation in trading comes from the Home Office’s sponsor guidance, which provides examples of situations which the Home Office consider to be a change to the sponsor’s circumstances. Such changes include, amongst other things, becoming insolvent, entering into a Company Voluntary Arrangement (‘CVA’) or a debt arrangement scheme. In each of these examples, sponsors must report this change to the Home Office within 20 working days of the change taking place. Further guidance is therefore required to understand if a broader definition, which includes COVID-19 related issues, can be applied and utilised by businesses. 



Before deciding to put some or all of your workforce on Furlough Leave (regardless of whether you employ Tier 2 employees) it is advisable to seek initial advice on the selection process.


 



Q5: If I put my Tier 2 employee(s) on Furlough Leave, will I need to notify the Home Office?



A: The existing guidance, published on 3 April 2020, does not specify whether sponsors must notify the Home Office of this change. We therefore recommend adopting a cautious approach until guidance has clarified whether it is necessary. Guidance relating to ‘priority change of circumstances’ updated on 5 April 2020 (see at Q11 below) does not appear to cover this point.


Reporting Duties


As a general point, you must report certain information or events to the UKVI using the SMS, within a set time limit. Sponsors have a duty to inform the UKVI via the SMS if there are any significant changes in the migrant worker’s employment circumstances. See more on this below. This would include furloughing a sponsored worker and paying them a reduced salary.


Sponsors must report the following within 10 working days:



  • if a sponsored migrant does not turn up for their first day of work - you must include any reason given for their non-attendance;

  • if a sponsored migrant’s contract of, or for, employment or services, or registration with a relevant body, is terminated earlier than shown on their Certificate of Sponsorship (‘CoS’) - for example, if the migrant resigns or is dismissed; you must include the name and address of any new employer that the migrant has moved to, if known;

  • if you stop sponsoring a migrant for any other reason, such as:

    • you become aware that they have moved into an immigration route that does not need a sponsor;

    • they are absent from work without pay for 4 weeks or more, and this absence is not covered by an exception;

    • if there are any significant changes in the sponsored migrant’s circumstances, for example:

    • a promotion or change in job title, or core duties, other than those which need a change of employment application;

    • a change of salary from the level stated on the CoS, other than changes due to annual increments or bonuses;

    • a change of salary from that stated on the CoS;

    • the location they are employed at changes;


  • if a sponsored migrant’s employment is affected by TUPE or similar protection – for example, if you are involved in a merger or demerger;

  • if the size of your business changes from small to large or vice versa;

If you are reporting any changes referred to in the first three bullet points above, you must include the last recorded residential address and contact telephone number for the migrant, and any personal email addresses you have for them.


 



Q6: Do I need my employees’ permission to put them on Furlough Leave?



A: By applying to the CJRS, a sponsor is seeking to change the status of their sponsored employee to that of a ‘furlough worker’ and, also possibly reduce their sponsored employee’s salary. It would be unusual for an employee’s contract to contain a clause allowing an employer to unilaterally change their worker status and/or impose a pay reduction. A sponsor would therefore most likely need their sponsored employee’s permission to change to convert them into a ‘furlough worker’ and/or to reduce their pay, as either or both amendments would amount to a fundamental change to a term of their employment contract.


 



Q7: My employees can work remotely – can I still make a claim under the CJRS?



A: The UK Government’s website describes the CJRS to be applicable to employees whose role would otherwise be made redundant. If an employee can continue to work at home, then it is questionable whether it could be said your employee would have been laid off as a result of COVID-19. Until this position is clarified by further guidance, we do not consider a sponsor to be able to utilise the CJRS where there is a reasonable expectation their sponsored employee can continue to work from home.


 



Q8: My sponsor has asked me to work reduced hours and to reduce my salary on a pro-rata basis in response to COVID-19 and the business downturn. Will this breach the terms of my visa?



A: If you are not furloughed under the CJRS, but are instead asked to work reduced hours, then your salary can be reduced on a pro-rata basis, in accordance with the standard rules and guidance for Tier 2 workers. Your salary must not therefore fall below the relevant Tier 2 visa category minimum.


 



Q9: Do we need to tell the UKVI if our sponsored workers are working from home?



A: No. The Home Office’s COVID-19 related guidance published on 27 March 2020 and updated on 3 April 2020 states that employers do not have to report that sponsored workers are working from home, if working from home is directly related to the coronavirus pandemic.


 



Q10: Can I put my sponsored employee on unpaid leave to avoid making redundancies and do I need to tell the UKVI?



A: Tier 2 workers are usually prevented from taking more than 4 weeks of unpaid leave each calendar year. The only exceptions to this are where the unpaid absence is for one or more of the following reasons:



  • statutory maternity leave;
  • statutory paternity leave;
  • statutory parental leave;
  • statutory shared parental leave;
  • statutory adoption leave;
  • sick leave;
  • assisting with a national or international humanitarian or environmental crisis overseas, provided you agreed to the absence for that purpose; or
  • taking part in strike action as part of a legally organised industrial action.

Where the sponsor is required to stop sponsoring a migrant who has been absent from work without pay for 4 weeks or more, the sponsor must report this using their SMS account. This applies whether the migrant is absent from work over a single period or more than one period during any calendar year (1 January to 31 December). The 4 weeks is worked out according to the migrant’s normal working pattern.


This position has however changed - according to the guidance for Tier 2, 4 and 5 sponsors, employers do not currently need to withdraw sponsorship from employees who are absent from work without pay for 4 weeks or more, providing the absence is related to the coronavirus pandemic.


Absences related to coronavirus do not need to be reported to the UKVI. Nonetheless, it is advisable that employees and sponsors maintain records of the duration and reasons for any unpaid absence that extends beyond 4 weeks and how this relates to the coronavirus pandemic.


 



Q11: I need to notify the Home Office of a change of circumstances. What is the quickest way of doing this?



A: On 5 April 2020 updated guidance covering the ‘priority change of circumstances’ service for sponsors was published. This service allows sponsors to prioritise certain requests each day, by submitting an application via email.

The requests covered by this service are as follows:



  • additional CoS allocation;
  • annual CoS allocation;
  • add a new level 1 user;
  • change level one user;
  • replace the authorising officer (AO);
  • amend the authorising officer (AO);
  • replace the key contact (KC);
  • amend the key contact (KC);
  • add a representative; and
  • amend your organisation details – moved to new premises.

To be eligible to use the priority change of circumstances service:



  • be an A-rated Tier 2 or 5, fully active licenced sponsor;
  • have submitted a request prior to emailing the T2&5 priority service mailbox;
  • the request must not be in progress/or allocated to a caseworker;
  • you must have printed the submission sheet if your request is to replace the authorising officer or appoint a representative;
  • you cannot be a premium sponsor, or requesting priority for a Tier 4 case (If you are a premium sponsor, please contact your account manager);
  • if the request is for additional certificates of sponsorship, they must be for unrestricted CoS only (please note: any restricted CoS requests will be rejected, and a refund will not be issued); and
  • you must submit a fully completed application to the priority service team.

Full guidance on how to submit a change of circumstances request can be found on the sponsorship management system (SMS).


Once you have submitted your SMS change, you can email Tier2&5PriorityRequests@homeoffice.gov.uk with a completed Tier 2 & Tier 5 priority request form as an attachment. You can apply for multiple priority requests however they must be on the same licence. Multiple request forms for different sponsors on the same email will not be considered.


If your request is eligible and you receive an email containing a link, you will have 72 hours to make payment. This includes weekends. If payment is not received within that time, your priority request will expire, and you will need to apply again to be considered.


The guidance suggests that eligible requests that have successfully made payment will be considered within 5 working days.


The charge for the service is £200 per request.


 



Right to Work Checks


Q12: Have any adjustments been made to the Right to Work (‘RTW’) checks process to make it easier for employers during this period of shut down?



A: Yes. As of 30 March 2020, guidance was issued confirming RTW checks have been temporarily adjusted due to COVID-19 to make it easier for employers to carry them out.


The following temporary changes have been made:



  • checks can now be carried out over video calls;
  • job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
  • employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents;
  • checks continue to be necessary and you must continue to check the prescribed documents listed in Right to work checks: an employer’s guide. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.

After the COVID-19 measures end, employers should follow the checking process set out in Right to work checks: an employer’s guide. You will be asked to carry out retrospective checks on existing employees who started working for you during these measures. The retrospective checks must be carried out within 8 weeks of the COVID-19 measures ending. Both checks should be kept for your records.


The UKVI guidance states they will not take any enforcement action against you if you carried out the adjusted checks set out in this guidance, or a check via the UKVI, and follow this up with the retrospective checks.


If, at the point of carrying out the retrospective checks, you find your employee does not have permission to be in the UK you must end their employment.


If the checks you have undertaken during the adjusted period were conducted in the prescribed manner, you do not need to undertake a retrospective check.


Tier 4: Sponsors and Students

Q1: I am a Tier 4 student and I am not able to attend my classes. What does this mean for my visa and what should I do?



A: The guidance published within the Home Office’s factsheet of 24 March 2020, on the UKVI’s website (most recently updated on 3 April 2020), and on their additional factsheet for sponsors, dated 2 April 2020, states that Tier 4 students may undertake distance learning without breaching the terms of their sponsorship or visa. This policy applies where students are unable to attend their studies due to illness, the need to serve a period of quarantine or the inability to travel due to travel restrictions caused by coronavirus. Tier 4 students in the UK, those who have decided to return overseas or those who have not yet been able to travel to the UK in light of travel restrictions can take advantage of this policy, but only until 31 May 2020.


If you are absent from your course due to illness, including COVID-19, your sponsor is not currently required to report your absence to the UKVI, providing they have authorised this. An absence for any reason that is ‘due to the coronavirus outbreak’ should be treated as an authorised absence by your sponsor. If your absence extends beyond 60 days and there are exceptional reasons for this, your sponsor is not obligated to withdraw their sponsorship from you – it will be a decision for your sponsor to take. The standard Home Office guidance covering curtailment (published in December 2019 and linked here) mirrors this provision and says, in exceptional circumstances, “a sponsor may continue to sponsor a student for longer than 60 days providing the student can still complete their course within their current leave”.


The Home Office initially confirmed that it ‘recognises the current situation is exceptional and will not take any compliance action against students…who are unable to attend their studies…due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students…despite absences for this reason’. This reassurance has however been removed from the current Tier 4 COVID-19 guidance section on the government’s website.


The situation for students and sponsors after 31 May 2020 is at present unknown but is due to be reviewed by the UKVI in the coming days/weeks. In the interim, we recommend that students and their sponsors retain evidence of any absence – for example, email communications and a record of the education provider’s closure dates - to demonstrate that the period of absence was due or related to COVID-19 concerns.


 



Q2: Can I withdraw from my course or officially defer it without effecting the terms of my visa?



A: If you decide to permanently withdraw from your course or formally defer it, the usual reporting duties of your sponsor do still apply – your student visa may therefore be cancelled or curtailed in these circumstances. Sponsorship must be withdrawn in the usual manner via the Sponsorship Management System (‘SMS’).


 



Q3: I have been issued a Confirmation of Acceptance for Studies (‘CAS’) but the start date for my course has since been changed. Can I still apply for a Tier 4 student visa?



A: Yes. The guidance published on the UKVI’s website on 3 April 2020, states that your visa application will not be automatically refused if your course start date (as stated on your CAS) has changed. The Home Office will instead use their discretion, on a case-by-case basis, to decide whether to refuse an application for this reason. Students should therefore treat this guidance with caution and to avoid a refusal, provide as much information and evidence as possible in their application as to the reasons for this change in start date.


 



Q4: Do sponsors still need to comply with general legislation and policy guidance?



A: Yes. It is important that all decisions are taken in accordance with relevant legal provisions. There may also be significant reputational consequences for education providers that do not act in an appropriate manner during the pandemic.


Visa Holders and Short-Term Residents in the UK

Q1: I am in the UK and my visa is due to expire shortly. I am not able to leave the UK because of travel restrictions imposed as a result of the coronavirus. What should I do?



A: The initial UK Government guidance published in mid-February 2020 applied only to Chinese citizens and residents of China who found themselves stuck in the UK as a result of COVID-19 related issues. This guidance provided Chinese nationals and residents with the possibility of being able to extend their visas until 31 March 2020.


On 24 March 2020 guidance was published on the government’s website for visa holders and short-term residents in the UK (last updated on 6 April 2020), which applies to all nationalities. This is supplemented by the Home Office’s factsheet, published on 2 April 2020. This guidance states as follows:



  • if you are in the UK lawfully and your visa has expired or is due to expire between 24 January 2020 and 31 May 2020; and
  • you cannot leave the UK because of travel restrictions or self-isolation as a result of the coronavirus, your visa will be extended, free of charge, with valid leave until 31 May 2020.

Feedback from UK Visas and Immigration (‘UKVI’) indicates that the term ‘self-isolation’ is intended to cover those who choose to self-isolate, not just those who are considered high-risk or are infected/have been in contact with those infected.


It is important to note visas are not being automatically extended. Instead, to benefit from this extension policy, you must first contact the UKVI’s dedicated Coronavirus Immigration Team (‘CIT’) to provide them with your personal details, your existing visa details and an explanation of why it is you are unable to return to your home country. On 6 April 2020 an online form became available to use to contact the CIT to apply for an extension of your visa.  The CIT can also be reached by phone or by email. The CIT will then respond to confirm whether your visa has been extended and if so, to confirm that it has updated your Home Office records accordingly.


The UKVI guidance does not clarify which visa holders and short-term residents they intended to extend this policy to. We however envisage, subject to any future clarifications from the UKVI, that this encompasses visitors, short-term students, parents of a Tier 4 (Child) student and some other short-term visa categories.


The guidance makes clear that those whose visas are extended will not have any enforcement action taken against them during this period and that this extension will not be held against them in future applications.


Whilst this is reassuring news for many, it is worth regarding this extension policy with caution. This is because, at present, the UKVI have not confirmed that extending your visa under this policy will engage the protection from overstaying provided for by legislation (Section 3C of the Immigration Act 1971). The purpose of Section 3C is to provide an applicant with protection from becoming an overstayer when an in-time application is made to extend or vary their leave. Section 3C extends an applicant’s leave while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. Until the UKVI confirm whether their COVID-19 extension policy is rooted to this protective piece of legislation, applicants relying on this policy are being left in a legal grey area, which remains vulnerable to further policy change at the whim of the UKVI.


It is thus our view, at the time of writing, that where applicants have an alternative route open to them, by making a valid, in-time in-country application to switch or extend their leave under the Immigration Rules (which does engage the protection from overstaying provided by Section 3C of the Immigration Act 1971), this may still be the best course of action.


Those without an alternative route should be mindful of the above risk and seek to make an application through the usual channels as soon as it is possible and practicable to do so if they want to remain in the UK. Otherwise, as Priti Patel has said, “Those who contact the Home Office for these visa extensions will be expected to return to their home countries as soon as possible once flight and border restrictions are lifted”.


 



Q2: I want to apply to switch into a different, long-term visa category. I would usually be required to apply from outside of the UK but I am unable to leave because of the travel restrictions. Can I apply from inside the UK instead?



A: If the requirement to apply from outside the UK (e.g. having prior entry clearance) is relevant to you (for example, if you are currently on a Visit Visa or a Tier 5 (Youth Mobility Scheme) Visa, the available guidance confirms that until 31 May 2020, the UKVI will waive the requirement for you to apply from outside the UK. Applicants may therefore apply for a long-term visa from inside the UK, but only if they can meet all of the other usual rules that apply to that visa category and pay the standard Home Office and Immigration Health Surcharge fees.


This concession is however of limited value at present – see Q3 below for an explanation as to why this is.


 



Q3: Is it possible to apply for a visa from inside the UK at the moment?



A: At the present time application forms can still be submitted online or by post and applicants can still pay all the attendant fees in the usual way, but the UKVI will not begin considering an application or provide a decision on an application for the time being. This is because the second stage of the application process has been disrupted by COVID-19.


The second stage of the application process requires applicants to book and attend an appointment at one of the UK Visa and Citizenship Application (‘UKVCAS’) centres across the UK, ordinarily within 45 days of submitting their application form and paying their fees. At these appointments, applicants have their ID scanned, their biometrics taken and submit their supporting documentation. At the present time, all UKVCAS centres are closed and are remaining closed until further notice. A link to their website can be found here and should be monitored for updates. Applicants therefore have no way of completing the application process at present. 


If you booked and were waiting to attend your appointment when your UKCVAS centre closed, the UKVI guidance states you will be contacted and told what to do. In our experience, this entails UKVI Customer Services contacting you via email with a request to review the UKVCAS appointment calendar to rebook. As a result of the present disruption caused by COVID-19, appointments are being re-scheduled for around 6 weeks after the application. The guidance also states individuals will not be regarded as overstayers or be subject to enforcement action if they are unable to attend an appointment due to COVID-19 restrictions.


This reassurance should also be coupled with a reminder to applicants that, in accordance with Immigration Rule 34G, it is the date you submitted your forms online and paid the relevant application fees that determines when you applied – not the date you attend your appointment. This is an important distinction to make, as it is only applications submitted in-time (before the expiry of your visa) that will extend an applicant’s leave whilst a decision is pending. The delay to attending an appointment should not therefore interfere with an applicant’s ability to reside lawfully in the UK, under the same terms of their current visa, whilst services have been disrupted.


Further guidance for applicants is required as a matter of urgency.


Applying for a UK Visa from Outside of the UK

Q1: Is it possible to apply for a visa from outside of the UK at the moment?



A: No. This is because most of the UK’s Visa Application Centres (‘VACs’) are currently closed and we anticipate more will be closing in the coming days. Those that currently remain open are offering limited services. Applicants are therefore being advised by the Home Office, by way of their factsheet, to check for up to date services in their chosen country.


For those applying from Europe, Africa and parts of the Middle East visit the Home Office’s relevant commercial partner, TLSContact. An update of its services can be found via its website: https://uk.tlscontact.com.


If you are seeking to apply from any other country, VFS Global is the Home Office’s relevant commercial partner. An update of its services can be found via its website: https://www.vfsglobal.co.uk.  


 



Q2: I had already submitted an application for a visa but my VAC shut before I could attend my appointment. What should I do?



A: Where visa applicants have an appointment and the VAC is now closed, commercial partners are contacting customers to advise them the appointment is not going ahead. If customers have paid for a courier to return their passport, commercial partners are sending passports back (where courier routes remain open to allow them to do so).


The Home Office’s guidance does not clarify what will happen to the fees paid for appointments that will not now proceed. Nor is there any guidance on what will happen to applications in the interim or when appointment booking is likely to resume. Further guidance from the Home Office is therefore required.


 



Q3: I have already attended my appointment at my VAC to hand in my passport and provide a copy of my supporting documents. My VAC is now shut. What should I do?



A: If you have paid for a courier to return your passport, the relevant commercial partner (either TLS Contact or VFS Global) will send your passport back to you (where the courier routes remain open to allow them to do so).


If your passport is currently held in a VAC but you have not arranged for it to be returned by courier (a paid-for service you can opt into when booking your appointment), you are being advised to contact the relevant commercial partner for your VAC.


If you are concerned about your passport, you can contact the Coronavirus Immigration Team using the details found at the bottom of the Home Office’s factsheet.


 



Q4: I have been issued with a 30-day visa (vignette) but cannot travel to the UK before it expires. What should I do?



A: Ordinarily if you cannot travel within the validity of your 30-day visa, you would need to apply for a replacement visa.


Thus far the UKVI have not provided any guidance on what to do when you are unable to travel for COVID-19 related reasons. It is therefore advisable for you to contact the UKVI’s dedicated email account, CIH@homeoffice.gov.uk, with your query to understand whether a further application will be necessary or whether this requirement can be waived. You may also wish to wait for further guidance issued by the UKVI to clarify this issue.


 



Q5: I need to submit an application to the UKVI before my visa is due to expire. To make the application, I have to pass an English language test and/or the Life in the UK test but all the test centres are closed. What should I do?



A: There is no UKVI guidance as yet about how applicants should proceed with applications where they cannot submit the required test certificate(s) and thus, meet all of the relevant rules at the time of application.


Whilst guidance on this issue is awaited, applicants should ensure they preserve their leave by submitting an in-time online Home Office application and paying the relevant fees (before their visa expires).


Applicants should not book an appointment at their chosen UKVCAS centre until the centres have reopened and you are able to take the relevant test and receive your results. That way, you may not have met the English language/Life in the UK requirement on the date you applied, but you will meet it by the date of your appointment. In these circumstances, it would likely be unreasonable for the UKVI to refuse your application as you have endeavoured, as far as circumstances allow, to meet the rules as soon as was practicable.


Applying to the EU Settlement Scheme (EUSS)

Q1: Can I still apply to the EUSS during this period?



A: According to guidance issued by the Home Office on 30 March 2020, applications can continue to be made to the EUSS via the “EU Exit ID Document Check” app and online and these will continue to be processed, but decisions will take longer than the standard processing times.


Applicants will not however be able to make use of the ID document scanner locations (these have been temporarily closed) and the Home Office are not currently accepting ID documents by post.


Tier 1: Entrepreneurs

Q: I have leave to enter or remain as a Tier 1 (Entrepreneur) migrant and I am considering whether to let staff, including settled workers, that my company employs go. How will this affect my ability to meet the job creation requirement for the extension of my visa?



A: The UKVI’s guidance for UK visa applicants and temporary UK residents, last updated on 3 April 2020, confirms that if you are on a Tier 1 (Entrepreneur) visa and your business has been disrupted, you no longer need to employ at least 2 people for 12 consecutive months each.


The 12-month period you are required to employ someone for can be made up of multiple employees across different months. Any time during which your employees were furloughed will not count towards the 12-month period.


The guidance also provides that if you have not been able to employ staff for 12 months in total by the time your visa expires, you will be allowed to temporarily extend your stay to give you time to meet the requirement.


Applicants should maintain detailed records for their staff members to assist with meeting the job creation requirement at the time of application.


NHS Workers

Q1: I am an NHS worker. What provisions have been made to extend my visa and how to access them?



A: If you are a doctor, nurse or paramedic working for the NHS, your visa will be automatically extended (no application is necessary) by one year if it is due to expire before 1 October 2020. Family members with a visa due to expire before 1 October 2020 will also have their visa extended. The extension is free of charge and you will not have to pay the Immigration Health Surcharge.


The UKVI will contact NHS employers to identify staff eligible for this extension and they will confirm with you and your employer if you have received an automatic extension.


 



Q2: I am currently required to work longer hours than my visa allows to help the NHS cope with the COVID pandemic. Will this affect my visa?



A: The UKVI’s coronavirus ‘advice for UK visa applicants and temporary UK residents’ published on their website and last updated on 3 April 2020, states that the UKVI have made changes to the current restrictions on the number of hours you can work or volunteer. There is no longer a limit on the number of hours you can work or volunteer each week if you work for the NHS as a doctor, nurse of paramedic and you are a:



  • Tier 4 student;
  • Tier 2 migrant worker and your NHS job is a second job;
  • visiting academic researcher;
  • holder of a short-term visa and are permitted to volunteer;
  • If you are a pre-registration nurse in the UK.

The UKVI have also extended the deadline for you to sit the Occupational Structured Clinical Examination (‘OSCE’) to 31 December 2020.



Note: given the ambiguous and transient nature of the above policies, it is advisable to seek clarity and advice on all COVID-19 related issues.


Contact Us
If you would like to discuss any of the issues raised, please contact our Immigration Team:


Elena Tsirlina | Solicitor, Head of Immigration and Asylum
elenatsirlina@cdsmayfair.com | +44 7891 857588


Chloe Spaven | Solicitor
chloespaven@cdsmayfair.com | +44 7462 116621



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