Travel restrictions and the gradual closure of visa application centres overseas and in the UK have seen many businesses pausing recruitment or employment for those requiring a visa to work. The implications are wide-ranging.
For overseas recruitment and global mobility, there have emerged three categories of new international hires, based on which stage of their visa application they are.
Individuals who have received an employment offer but have not yet submitted their visa application may have been affected by closures of other providers, essential for their visa application, such as English Language test centres.
Some businesses have unfortunately had to rescind employment offers or delay recruitment until the process is back up and running.
Other businesses have already paid expensive Certificate of Sponsorship (CoS) fees, which are only valid for three months. The Home Office have relaxed their requirements but have said that they would assess this on a case-by-case basis.
Individuals who have submitted their visa applications and have not received a decision yet may have been ‘trapped’ in the closed visa centres and there are often no easy ways to recover their documents, including their passports.
Even if these individuals have received their UK visa, they may not be able to travel. Depending on the length of the visa, successful applicants receive a vignette that is valid for 30 days, allowing them to enter the UK only during that window. These individuals find that their vignettes are expiring before they can enter the UK.
Sporadic Home Office guidance is being published for those in the above situations but uncertainty remains. Meanwhile, businesses have invested in expensive visa applications and are finding that, even when they decide to rescind offers, not all visa fees are refundable.
As an interim measure many of these individuals are beginning work from their country of residence as UK immigration law only limits work undertaken inside the UK.
An American national for example can still work for a UK company while they are based in the USA. The Home Office is still expected to release guidance on the use of expired visa vignettes.
There have also been changes in employment circumstances for existing migrant workers.
Businesses have had to quickly adopt a ‘survival mode’, but there are additional complications when changing T&Cs for sponsored workers, considering the strict sponsorship duties imposed on employers. The most common areas are salary reductions, working from home and absences.
Normally, there are rigid rules on lowering sponsored workers’ salaries yet the Home Office have now allowed reductions up to 80% or £2,500 per month, whichever is lower.
This would allow employers to ‘furlough’ migrants under the Job Retention Scheme if this is a company-wide policy and does not discriminate against migrants.
Remote working would normally require a Home Office report but is temporarily allowed without reporting, if it is due to COVID-19. The same applies to paid or unpaid absences.
Unpaid leave is normally restricted to up to four weeks per calendar year, but this is now relaxed, if caused by COVID-19.
Many businesses find they are unable to recruit individuals who are already in the UK under a non-working visa or a visa for a different employer when it is required that they switch to a new working visa.
Some exceptional switching provisions have been made for certain visa holders, but the visa application centres remain closed.
Normally, those businesses would need to wait for the visa to be approved before they can legally commence employment.
The Home Office released guidance on 14 April to confirm that employers will be temporarily allowed to recruit these migrants if they have assigned them a CoS, the employee submitted their visa application before their current visa expired or the role they are employed in is the same as the one on their CoS.
The Home Office states that it is committed to ensuring no one is disadvantaged for being unable to perform their obligations as they would have due to COVID-19.
However, it is expected that these temporary practices will come into great scrutiny in the future and employers need to ensure they are doing everything they can to ensure they are as compliant as possible.
By Naomi Hanrahan-Soar, managing associate and Despina Stoimenidi, paralegal at law firm Lewis Silkin