Does the Home Office have a COVID-19 policy in place to cover employees with expired, or soon-to-expire, visas who are unable to extend their visas due to COVID-19?

The Home Office policy on providing extension to visas of those who cannot leave the UK as a result of the current lockdown has been subject to significant revisions over the past few weeks, with the most recent iteration updated on 20 April here.   

The updates have created a new system: all visa holders whose visa either expired after 24 January or will expire before 31 May 2020 are required to contact the Home Office to obtain an extension. Unlike the earlier policy, which conferred an extension automatically, individuals will have to contact the Home Office to extend their visa.

To qualify for an extension an applicant must be:

  • either a visa holder whose visa expired after 24 January 2020 OR a visa holder whose visa expires between 24 January 2020 and 30 May 2020; and
  • unable to leave the UK either because of travel restrictions or self-isolation.

How does an individual apply for an extension?

The Home Office guidance requires individuals to contact a dedicated COVID-19 immigration team using their online form, which can be found here.

The individual must provide personal information requested (such as their full name, date of birth etc.) and also explain the reason why they cannot go home. The guidance cites border closures as an example.

Further, the guidance states that the Home Office will let the individual know when the request is received and the visa has been extended. We are seeking urgent advice at a high level from policy-makers as to the timescales involved in this process, and will update our information here.

A fact sheet summarising the process is not currently publicly available but can be found here.

What about employees whose visa is about to expire and who are in a position to make an application? How will their visa process be impacted by COVID-19?

All applications in the UK are initiated by an online application and payment of both the Home Office and the Immigration Health Surcharge. The date of payment of the online application is considered the date of application. This is very important and very helpful in this period as it means that, providing an application is made online before a visa has expired, the individual will remain in the UK lawfully and will continue to have permission to live and work in the UK while their visa is being processed. Therefore, individuals who can meet the requirements should continue to make online applications in the normal way.

OK, so I can make an application online but how will my application be impacted by the fact that the visa application centres are closed in the UK?

Normally, the next step in the process would be for the applicant to attend a visa application centre for the purpose of enrolling biometrics. UK visa application centres are operated by Sopra Steria, a third party commercial operator. Sopra Steria closed all of its UK visa application centres on 27 March, which means that this stage in the process has come to a temporary halt.

We understand that some immigration practitioners are advising those whose visas are expiring prior to 31 May 2020 to contact the Home Office’s Coronavirus Immigration Team.  We would only advise this action for those who are unable to make a visa application.

We have been assisting clients in making visa applications since the closure of the Sopra Steria offices, and the Home Office online application system provides the following message to applicants:

“Coronavirus (COVID-19): Disruption to this service

Due to the impact of COVID-19 and the worldwide border, travel and public health restrictions our appointment locations are temporarily closed. You should complete your application and any further actions as usual. Your application will not be affected by the centres closing.”  (our emphasis)

Can a business hire a new employee who is currently sponsored by another employer? If so, when can that new employee start their new employment?

An employee can start work with their new sponsored employer if the following conditions have been met:

  • they have submitted an online Tier 2 application for their new employment before their current visa expired; and
  • the application made was based on a Certificate of Sponsorship issued by their new sponsor for the new role.

What other significant new policy changes have been announced?

In addition to the limited visa extension policy, the UK Government has announced that it will temporarily expand in-country switching provisions. Its guidance states: “this includes applications where you would usually need to apply for a visa from your home country.” This could be helpful for employers as it could include, for example, Tier 5 visa holders switching into Tier 2.

What will happen to individuals who are unable to meet the requirements of the route they are on due to a COVID-19-related circumstance, for example they cannot meet the financial requirement due to a change in their financial circumstances?

We are reviewing the situation for all of our clients who have visas expiring in the next six months. Where possible, we are bringing forward plans to make their visa application in order to protect their position in the case of a change to their financial circumstances. A number of our clients, who entered the UK as partners on a visa lasting two years and nine months, are able to take advantage of this strategy as those who hold partners visas can make their application as early as 28 days prior to obtaining a 60-month period in the UK. If you are unable to make an application for a COVID-19-related reason, please contact us for tailored advice.

Employers who hold sponsor licences

Do I have to report staff absences due to COVID-19 to the Home Office?

The Home Office previously issued guidance to say that an employer does not require to report absences due to the COVID-19 outbreak through the sponsor licence system. This section of the previous guidance is not included in the updated version, however our view is that sponsors can continue to follow this position as a contradictory view would be inconsistent with the UK Government’s stance of relaxing duties to sponsors in these unprecedented times.

What happens if I make a sponsored migrant redundant due to COVID-19?

With the introduction of the furlough scheme, the UK Government is hoping to minimise the number of redundancies resulting from the COVID-19 pandemic. However, if a sponsored migrant is made redundant there has so far been no relaxation of the employer’s requirement to report this to the Home Office within 10 working days.

In terms of the Home Office’s curtailment policy, it would normally take action to curtail (cut short) the individual’s immigration permission to be in the UK to 60 days. In the circumstances, we would expect the Home Office to take a more generous approach to curtailing visas given the problems that many individuals will have in leaving the UK. Further, anyone whose visa has been curtailed already to expire on or before 30 May should contact the Home Office’s dedicated COVID-19 immigration team to seek an extension.

What happens if a sponsored migrant is furloughed?

We have been contacted by a number of employers seeking advice on the implications of furlough for their sponsored workforce. The Home Office published guidance on furlough on 3 April 2020 in which it advises that salaries can be temporarily reduced to either 80% of the employee’s salary or £2,500 per month, whichever is lower. Reductions must be part of a company-wide policy to avoid redundancies and all workers must be treated the same. The policy can be found here.

We would recommend that employers report reductions in salary and retain evidence that the reduction was caused by the pandemic

Would furlough payments made through the UK Government’s Coronavirus Job Retention Scheme be considered to breach visa conditions that prohibit recourse to public funds?

No, the Immigration Rules specifically define which benefits are considered to be public funds for the purposes of the Immigration Rules. The rules would need to be amended to bring these payments within the definition. Our view is that the UK Government would not seek to take such a step, which would penalise both employers and their sponsored staff.

What happens if a sponsored migrant is outside the UK and their visa expires? Will the cooling off provisions apply?

Employers should consider asking all sponsored staff working outside the UK to return to the UK now. Under the current immigration rules, if their visa expired while they were overseas they would be banned from re-entering under cooling-off rules for 12 months unless they came within a restricted exemption category. A concession is expected to cover this situation.

Visa applications made outside the UK

The Home Office has a network of commercial third party-appointed operators that run the UK visa application centres overseas. As of today all visa application centres are currently closed.  For updates on local application centres, businesses should check:

  • TLScontact for employees  in Europe, Africa and parts of the Middle East
  • VFS Global for employees in all other countries

Employees who had an appointment scheduled at a centre that is now closed will be contacted regarding making a new appointment.

Has the Home Office made any changes to Right to Work?

The Home Office has made a number of temporary changes to the Right to Work checks to cover the period of the pandemic.

Under the new temporary rules:

  • checks can be carried out over video calls;
  • applicants and successful candidates can provide a scanned copy of their ID documents by email prior to their start date. The checker then must arrange a video conference call with the individual to check the scanned ID and should record this as “an adjusted check undertaken on [insert date] due to Covid-19”; and
  • Employers can continue to use the Employer Checking Service if the individual cannot provide the accepted documents. For example, this may be because their visa has recently expired and they have made an application with the Home Office.

However, please note that these right to work checks are only being introduced as a temporary measure.

The Home Office has advised that employers will be required to carry out retrospective checks on existing employees who:

  • commenced employment while the temporary measures applies; or
  • required a follow-up right to work check while the temporary measures applied.

When will these new retrospective right to work checks need to be carried out?

The Home Office advises that checks will need to be carried out within 8 weeks of the COVID-19 measures ending, see https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks.

Can you provide any general words of advice for businesses and individuals?

We appreciate that many business owners are facing a very challenging set of issues at this time. Our view is that the Home Office in general is taking a sensible and pragmatic approach in these unprecedented times, and that any punitive action taken in the future against employers who have acted in good faith would be inconsistent with this approach.   

Our advice would be for employers to follow updated Home Office guidance and retain documentary evidence in terms of action taken. If you are concerned about issues of non-compliance that fall outside the Home Office Guidance, please get in contact with us for tailored advice.

Our advice to individuals whose visa is expiring is that the best course of action is to make a visa application in the normal way prior to their visa expiring, as opposed to seeking a coronavirus extension.

Please note that this is a fast changing area and that this guidance is up to date as of 22 April 2020. We will be updating the guidance as regularly as possible to take into account any changing developments.

For tailored and pragmatic support on any immigration issue, please get in touch with your usual immigration contact or contact our Head of Immigration, Jacqueline Moore, on 07702351526 or at jacqueline.moore@shepwedd.com.

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