Impact of Covid-19 on Tier 2 visas
The breakout of the Coronavirus Pandemic has caused a major change to the way that many businesses operate. Many businesses have suffered losses in revenue which has resulted in employees facing redundancy or being furloughed under the Government’s job retention scheme. A recent blog explored how Home Office policies are responding to the virus. This post specifically explores the impact of Covid-19 on Tier 2 visas.
Furlough leave for Tier 2 migrants under the Coronavirus job retention scheme
The job retention scheme has become a lifeline for many businesses that are struggling from reduced revenue as a result of the virus. The furlough scheme allows for businesses to essentially put their furloughed employees on ‘standby’, whilst there is a reduction in work, enabling the business to reclaim 80% of the wages of the furloughed employee, subject to a cap of £2,500 per month. The Government has announced changes to the amount employers can reclaim from August 2020. Employees are not permitted to work for the business during their period of furloughed leave, though the Chancellor has announced that employees can be furloughed part-time from July 2020.
Tier 2 migrants are no different to settled workers in terms of the job retention scheme. Employers who sponsor Tier 2 migrants can furlough them in the same way they can settled workers. However, the implications for Tier 2 workers in terms of their immigration status is, of course, different. As the scheme only covers 80% of the migrant workers’ salary, some employers have been forced to reduce Tier 2 migrants’ salary to below the minimum salary for their role, if they have not chosen to ‘top-up’ the extra 20% of the employee’s income.
How does the furlough scheme affect the Tier 2 minimum income requirement?
Tier 2 employers are permitted to reduce their Tier 2 workers’ salary once they are in the UK. This will not affect their immigration status providing that the salary remains above, or on, the minimum salary for the role that they are working. If the salary dips below the minimum, then the employer will not be able to continue sponsoring the migrant. This is, of course, a major concern for Tier 2 migrants who have been placed on furloughed leave.
As a result, the Home Office has announced that where sponsors have temporarily had to reduce their employees’ salary to 80% of the salary recorded on their Certificate of Sponsorship, or £2,500 (whichever is lower), the employer does not need to stop providing sponsorship. This is also the case where Tier 2 migrants have remained working and have not been furloughed, but have instead taken a 20% pay cut.
As expected, there are some restrictions on this policy as the concession only applies to businesses which have temporarily reduced or ceased trading. The pay cut must have been as part of a company-wide measure to avoid redundancies, and must also only be temporary. Migrants’ salary must return to its original level once the arrangements have ceased.
It will be interesting to see for how long the Home Office will permit this concession, and what, if any, evidence in support they require. When the furlough scheme ends, employers will be required to pay 100% of their employee’s salaries if their employment is to continue. The Chancellor has already announced that the scheme will end in October 2020, which is presumably when the above concession will be revisited by the Home Office. It is unclear, however, this will impact those migrants who have taken a 20% pay cut rather than being furloughed, if this paycut is to continue beyond October.
How will this impact future Tier 2 applications?
For indefinite leave to remain for Tier 2 (General) migrants, there is a minimum salary requirement. As it stands, migrants will have to show a minimum income of at least £35,800.
No concessions regarding this requirement have been announced by the Home Office. It is unclear whether this is something that will be considered or whether the Home Office will still expect migrants to show that they meet this requirement. This may be difficult for applicants who have either been furloughed or have taken a temporary pay cut as a result of the virus, as they may be unable to evidence that their pay meets the requirement.
Redundancy and Tier 2
A number of people across the UK have sadly lost their jobs as a result of the Coronavirus. Migrant workers who are facing redundancy will not only need to worry about their loss of income, but how the loss of their sponsored employment will affect their status in the UK.
There are currently no specific provisions in the Home Office’s Coronavirus policy to deal with Tier 2 migrants who have been made redundant as a result of the pandemic. Accordingly, there is no change to the usual Tier 2 guidance and the standard process remains in place.
Curtailment of Tier 2 leave
Where Tier 2 migrants are made redundant, or are no longer working for their employer for whatever reason, the employer has a duty to inform the Home Office within ten days of their final day of work. The Home Office will then curtail the migrants’ leave to 60 days from the date of the decision to curtail the leave. There is a backlog at the moment as a result of the virus, which means that there may be a delay in the migrants’ leave being curtailed. The migrant’s leave remains valid until their leave is curtailed.
There is no right of appeal against a decision to curtail a Tier 2 migrant’s leave. Though, in some cases, the Home Office may ask for further evidence rather than curtailing a migrant’s leave straight away.
Change of employment
The curtailment period is designed to give the migrant a chance to obtain alternative sponsored employment and to make a change of employment application. This application is imperative as migrants cannot remain on their previous Certificate of Sponsorship.
Migrants will also need to be aware that if they leave the UK, they will then become subject to the 12 month ‘cooling off’ period. It is essential, therefore, that any change in employment application is properly planned.
Expiry of Tier 2 leave
If a Tier 2 migrant’s leave is about to expire, and they have not yet had any success in obtaining alternative sponsored employment, then they will need to leave the UK before the expiry of their visa or make an application for an alternative form of leave.
The Government has stated that migrants’ visas that have expired since 24 January 2020, or are due to expire before 31 July 2020, will have their leave extended to 31 July 2020 if they are unable to leave the UK as a result of the Coronavirus. This would enable more time to search for an alternative visa or employer, however, it should be noted that migrants availing themselves of this policy are expected to take all reasonable steps to leave the UK before this date where it is reasonable to do so.
Pending Tier 2 applications
Some migrants may already have made their application to the Home Office, but are awaiting the outcome. The Home Office has confirmed that applicants can begin work before their visa application has been decided if:
- The applicant has been assigned a Certificate of Sponsorship;
- The applicant has submitted the application before the expiry of their current visa, and they can show evidence of this;
- The job is the same one listed on the Certificate of Sponsorship;
It should be borne in mind that if the application is rejected as invalid or refused, the sponsor will no longer be able to sponsor the migrant and the migrant must cease work.
For entry clearance cases, the Home Office also recognises that the start date listed on the Certificate of Sponsorship may have changed due to the migrant’s inability to travel, which could have ordinarily resulted in the certificate becoming invalid. The guidance confirms that where a CoS has become invalid, the Home Office will not necessarily refuse the application, and that such applications will be considered on a case by case basis.
Absences from work
Sponsors have a long list of duties that must be complied with in order for them to retain their sponsor licences. One of these duties includes reporting absences of more than 10 days to the Home Office.
The Home Office’s guidance has confirmed that sponsors do not need to report employee absences related to Coronavirus. Absences resulting from the virus include an employee’s need to isolate, or their inability to travel due to travel restrictions. The guidance also confirms that there is no need to withdraw sponsorship of an employee who is absent from work without pay for more than four weeks.
The guidance does, however, explicitly state that this policy will be kept under review. In order to be sure that sponsors are complying with their duties, they should make thorough notes on the SMS system and check the Home Office’s website regularly for changes to the policy.
The Home Office has also confirmed that if an employee is now working from home, they do not need to be notified. Other changes do still need to be reported as usual.
Contact our Immigration Barristers
Our team of business immigration barristers has experience in assisting employers and skilled workers across a variety of industries in companies of all sizes. Our barristers can help you with planning a change of employment application, or to consider the other options that may be available to you.
For expert advice regarding Tier 2 visas or the impact of Coronavirus on your immigration status, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
