The article responds to seven of the most common questions regarding the Coronavirus Job Retention Scheme (CJRS) and its impact on visa holders.
1. As the CJRS is publicly funded, does this mean that visa holders cannot be furloughed?
No. While most visa holders are subject to the condition “no recourse to public funds”, the CJRS employer guidance is clear that visa nationals can be furloughed and that furlough subsidy payments will not be considered as “recourse to public funds”.
This means that an employer can claim under the scheme in respect of any employees who are visa holders. However, it is important to note that the condition to have “no recourse to public funds” remains in place. There is a wide range of benefits which do constitute public funds - these include universal credit and child benefit. If a visa holder claims a benefit considered to be “public funds”, they will have breached the conditions of their visa. This can lead to their current visa being cut short and further visa extensions being refused.
2. Are there any special considerations that an employer should take into account when considering furloughing visa holders?
In Home Office Guidance to sponsors, the term furlough is not mentioned. However, the Home Office Guidance allows employers to temporarily reduce the pay of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower. This is in line with the furlough scheme guidance though, under the Home Office guidance, employers should be aware that reducing the pay of your visa employees can only be done as part of a company-wide policy to avoid redundancies “in which all workers are treated the same”. There is no such provision in the standard employer furlough guidance.
Under the standard employer furlough guidance, employers are permitted to treat workers differently, as they can furlough some employees and not furlough others. If the Home Office guidance is read together with the standard employer guidance on furlough, it would suggest the terms on which employees are furloughed would need to be the same across the whole business, which is probably the case anyway to avoid any unlawful discrimination claims.
The Home Office guidance on pay reduction may additionally or alternatively apply to employers planning pay reductions for working migrant employees (i.e. employees who are not furloughed) to help deal with the economic impact of COVID-19. If so, then the Home Office Guidance means that all employees must be treated the same so any pay reductions would have to be implemented across the business and visa holders cannot be singled out for different treatment just because they are on a visa. Again, this is what we would expect under existing anti-discrimination law anyway.
3. Can a Tier 2 employee increase their duties to pick up other work done by furloughed employees?
Any significant changes to the job description stated on the Certificate of Sponsorship (CoS) must be reported to the Home Office within 10 working days. If the new duties fall into another SOC Code then a change of employment application will be required. This will involve a new CoS and also a Resident Labour Market Test (RLMT) unless an exemption applies.
While normally a new Tier 2 application must be granted before the employee begins their new role, as all of the Biometrics Centres are currently closed, the Home Office has introduced a concession which allows an employee to start working in their new role so long as they have submitted a valid and timely application which is linked to the CoS for the role they are carrying out. If the application is subsequently refused, then the employee must stop working immediately.
4. What happens if at the end of any period of furlough a Tier 2 worker is made redundant?
If, after a period of furlough, it becomes apparent that an employer will need to make redundancies, any termination must be reported to the Home Office through the Sponsor Management Service (SMS) within 10 working days of their last day of employment.
In terms of the Home Office process, the Sponsor Licence Team will pass on notifications of termination to the Home Office’s Curtailment team who may then curtail (cut short) the individual’s visa so that they only have 60 days left on it. They won’t take any action if the individual already has less than 60 days left on their visa. An individual whose visa is cut short so they only have 60 days remaining is expected to make a new application within those 60 days or leave the UK.
Employers should take note that once that individual leaves the UK they would be subject to the so called ‘cooling-off’ provisions, which prevent them returning to the UK on a Tier 2 visa for a year unless they are paid a salary of more than £159,600.
5. Where can I access the Government’s information on furlough and immigration?
6. How long can a Tier 2 employee stay furloughed or be subject to a salary reduction?
Tier 2 workers can remain furloughed and/or subject to a salary reduction while the COVID-19 measures are in place. When these measures come to an end, the normal conditions of sponsored employment should resume.
7. Are there any practical considerations that an employer must take prior to furloughing Tier 2 staff?
By furloughing an employee, you are placing that employee on a period of leave and changing their employment contract. Employee agreement to the change in status and any change in remuneration during furlough leave should be secured. Written confirmation of the decision to furlough and the requirement for the employee to do no work for the employer or any associated or connected employer during furlough leave must be retained for five years. Additionally, we recommend that copies of the Home Office guidance are printed and held on your HR files for each of your Tier 2 workers.