COVID-19 EXPERT LEGAL INSIGHTS

UK immigration FAQs for UK visa holders and businesses

Last updated: 21 October 2020

The coronavirus (COVID-19) pandemic is causing particular problems for people with UK visas and for their employers.

Some UK visa application centres are still closed and there are new restrictions on international travellers arriving in the UK.
 

The Home Office has published limited guidance for visa applicants and temporary UK residents and guidance for Tier 2, 4 and 5 sponsors.

All of the online Home Office’s coronavirus-related immigration guidance can be found be here.

Here are the main questions we have been receiving from our clients. We will update the answers when the Home Office provides more information.

Please note that the questions and answers on this page are 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 circumstances.

Applying for a UK visa outside the UK
 

Is it possible to travel to the UK at the moment? 

Yes. The UK has not closed its borders but there are new rules for travellers arriving in the UK. From 8 June almost everyone travelling to the UK (except from Ireland) has to provide their journey and contact details by filling in an online public health passenger locator form before they travel. Some people have to self-isolate for 14 days after they arrive.

The Home Office has published guidance on travellers who are exempt from the new border rules. Some people – such as diplomats – do not have to fill in the form. Other people have to fill in the form but do not have to self-isolate.

The guidance describes the documents which travellers need to show at the border as evidence that they are exempt from completing the form and/or from self-isolating. One of the exemptions covers people who live in the UK but work in another country and travel between the UK and country of work at least once a week. Another covers the reverse situation – people who live outside the UK but work in the UK and travel between the two countries at least once a week. These people are exempt from the self-isolation requirement.

From 10 July 2020 there is a “travel corridors” exemption for England. Anyone arriving in England who has only been in the countries listed in the Department of Transport’s guidance during the last 14 days does not have to self-isolate when they arrive. They do still need to fill in the public health passenger locator form before they travel.

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Is it possible to apply for a UK visa at the moment?

It depends. UK visa application centres in many countries have reopened but some remain closed. If your local visa application centre is closed due to coronavirus, you can apply in a different country.

The UK has not closed its borders – although flights and trains are limited – so you can travel to the UK if you already have a visa or you do not need one.

The companies which run the visa application centres should keep their websites updated. For visa application centres in Europe, Africa and parts of the Middle East check https://uk.tlscontact.com/. For visa application centres in the rest of the world check https://www.vfsglobal.co.uk/en.

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What do I do if I have been issued with a 30-day visa and can’t travel to the UK before it expires?

If you have a 30-day visa in your passport and can’t travel to the UK before it expires you normally have to apply for a replacement visa – and pay a fee for this.

The Home Office’s guidance for visa applicant and temporary UK residents now says that you can you request a replacement visa with revised validity dates free of charge. This service will be available until the end of 2020. 

To request a replacement visa you should check the relevant visa application centre website for instructions on how to return your passport to them for a replacement visa to be placed in it. Alternatively, you can email the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk but you may have to wait a long time for a reply. If you contact the Coronavirus Immigration Help Centre include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line.

The replacement visa will be valid for 90 days.

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Applying to the Home Office in the UK
 

Is it possible to make a Home Office application in the UK at the moment – for instance a Tier 2 (General) change of employment application or an application for indefinite leave to remain?

It is possible to submit an online application. The problem is that after submitting the application you have to book an appointment to attend a UK Visa and Citizenship Application Services centre to enrol your biometrics and scan your passport.

Many UKVCAS centres have reopened but capacity is limited. People whose appointments were cancelled because of the lockdown are being prioritised. To help clear the backlog, the Home Office is inviting some applicants who have previously provided biometrics to use the Identity Verification (IDV) app.  Using the app means that you do not need to attend an in person appointment.  Instead, your photo and a scan of your passport are uploaded.  The priority and super priority services are currently unavailable.

According to the Home Office’s guidance for sponsors, if you have made a Tier 2 application in the UK – for instance a Tier 2 (General) change of employment application – you can start your new job before the application has been granted. You must have a valid CoS assigned by your new employer and you must have submitted your online application before your previous visa expired. If the application is subsequently refused your employer will have to terminate your employment.

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I want to switch visa status. Normally I would have to apply outside the UK for this type of switch. Can I apply in the UK instead?

Yes, but only if your visa  expires (or expired) after 31 August 2020. If you are in this situation the Home Office guidance says it is possible to switch visa categories in the UK even if you would normally have to make this type of application outside the UK – for instance, if you want to switch from a visit visa or a Tier 5 (Youth Mobility Scheme) visa to a Tier 2 (General) visa.  You will need to show that the application is “urgent”, for example to start a new job or course of study.  Further Home Office guidance on the meaning of “urgent” is required.

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My visa will expire soon and I need to submit a Home Office application. Before I submit my Home Office application I have to pass an English language test and/or the Life in the UK test but I cannot get an appointment in time. What should I do?

 Test centres have reopened but it may not be possible to get an appointment before your visa expires. 

If you are in this position you should still submit your Home Office application before your visa expires. Do not book your UKVCAS appointment until the English language / Life in the UK test centres have reopened and you have been able to pass the test(s). You may not have met the English language / Life in the UK requirement on the date you applied but if you meet it on the date of your appointment it would be unreasonable for the Home Office to refuse your application in the current circumstances.

If you are applying to stay in the UK on the basis of family or private life and the test centre is closed - or you cannot travel to it - you can request an exemption from the English language requirement.

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My visa will expire soon or has expired. I want to leave the UK but I can’t. What should I do?

If your visa expired between 24 January 2020 and 31 August 2020 – including if your visa was extended by the Coronavirus Immigration Team to 31 July 2020 – you had a grace period until 31 August 2020 to leave the UK.

The Home Office guidance states that if you could not leave the UK by 31 August 2020 and your visa expires (or expired) between 1 September and 31 October 2020 you can request additional time to stay – an “exceptional assurance” by completing the online form. Confusingly, the guidance accompanying the online form states that you can apply for exceptional assurance if your visa expires before 30 September 2020.  If your existing conditions allowed you to work, study or rent accommodation you may continue to do so during the period of exceptional assurance so long as it is granted. This exceptional assurance is an emergency measure and does not grant you leave to remain in the UK. You should only apply for it as a last resort if you have no other options.

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Tier 2 sponsored workers
 

Our company has a new employee who has been issued with a 30-day Tier 2 (General) visa and can’t travel to the UK to start work on time. What should we do?

Normally the work start date for a Tier 2 (General) worker can’t be postponed beyond 28 days from the start date on the certificate of sponsorship or 28 days from when the visa is issued, whichever is later.

The Home Office has indicated to us this rule will be waived. The Home Office should be notified through the Sponsorship Management System that the start date has been delayed.

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Our sponsored workers are all working from home. Do we need to tell the Home Office?

No. The Home Office guidance for Tier 2, 4 and 5 sponsors and the factsheet for visa holders and short-term residents in the UK state 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.

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We want to offer unpaid leave to sponsored workers to avoid redundancies. Is this ok? Do we have to tell the Home Office?

Usually Tier 2 sponsored workers cannot take more than 4 weeks’ unpaid leave per calendar year.

According to the guidance for Tier 2, 4 and 5 sponsors employers do not need to withdraw sponsorship from employees who are absent from work without pay for 4 weeks or more if the absences are related to coronavirus.

Absences related to coronavirus do not need to be reported to the Home Office.

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We want to reduce our sponsored workers’ hours and/or salaries to avoid redundancies. Is this ok?

Sponsored workers can work part-time but their salary must normally remain at or above the overall minimum level for the visa category regardless of their working hours. The overall minimum for a Tier 2 (General) visa is £30,000 per year (£20,800 for new entrants). The overall minimum for a Tier 2 (Intra-company Transfer) visa is £41,500 per year. The salary must also be at or above the occupation-specific minimum (the appropriate rate for the SOC code) which is adjusted pro rata according to the person’s working hours.

The Home Office has published guidance stating that employers can temporarily reduce the pay of sponsored workers to 80% of their salary or £2,500 per month, whichever is the lower. Any reductions must be part of a company-wide policy to avoid redundancies “in which all workers are treated the same”. Presumably this just means that sponsored workers must be treated in the same way as settled workers. Many employers are agreeing different terms with different employees – some employees might still be needed full-time while others are at risk of redundancy – so it would make no sense to require the entire workforce to be treated in exactly the same way. The reductions must be temporary and the sponsored worker’s pay must return to the previous level when the company-wide arrangements end.

This new policy is obviously intended to cover sponsored workers who are furloughed under the Coronavirus Job Retention Scheme (see below). However, the Home Office guidance does not refer to furloughing so it must also cover sponsored workers who are still working. This means that a sponsored worker’s salary can potentially drop below the overall minimum level if they agree to reduce their working hours by up to 20% and their salary is reduced accordingly. A sponsored worker’s salary can also fall below the occupation-specific minimum if they agree to a pay cut without a reduction in their hours.  

If a Tier 2 (General) sponsored worker was granted a visa as a high earner and their salary drops below £159,600 per year this would normally trigger the need to make a change of employment application. The new policy must mean that there is no need to make a change of employment application if the reduction is in line with the new policy.

There is still a question about whether a Tier 2 (General) sponsored worker is eligible to apply for indefinite leave to remain if their salary is been reduced to below the £35,800 minimum. The Home Office needs to issue guidance on this.

Any change in working hours or salary needs to be reported to the Home Office.

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Can we use the Coronavirus Job Retention Scheme for sponsored workers?

Yes. The Home Office has said that the Coronavirus Job Retention Scheme can be used for migrants. They have to meet the same eligibility requirements as other employees. For instance, they must been on the employer’s PAYE payroll on 28 February 2020. Some sponsored workers – especially some Tier 2 (Intra-company Transfer) migrants – will not qualify because they are not on PAYE.  

The Home Office has published guidance stating that employers can temporarily reduce the pay of sponsored workers to 80% of their salary or £2,500 per month, whichever is the lower. This is clearly intended to cover sponsored workers who are furloughed. See above for more information about absences and salary reductions.

For more information on the Coronavirus Job Retention Scheme, please see our FAQs for UK employers

We await Home Office guidance on the government’s new Job Support Scheme due to start on 1 November 2020 and how this will affect sponsored workers.

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We want to recruit someone who needs a Tier 2 visa. Can we? How long is the process going to take?

You can start the process in the normal way – carry out a resident labour market test (if this applies) apply for a CoS and assign a CoS – and the prospective employee can apply for a visa (or make a change of employment application to the Home Office if they are already working in the UK).

But to complete the process the prospective employee will have to attend a biometric appointment and this may not be possible at the moment – see above for information on applying for a visa outside the UK and applying to the Home Office in the UK.

If the new recruit is applying from within the UK they can start work before their application has been granted, according to the Home Office’s guidance for sponsors. They must have a valid CoS and they must have submitted an online application before their previous visa expired. If their application is subsequently refused you will have to terminate their employment. In the meantime you will not able to carry out a right-to-work check on their new biometric residence permit – because they will not yet have one. Instead you will need to carry out an online check on their existing biometric residence permit or – depending on the situation – apply to the Home Office’s Employer Checking Service for a positive verification notice. You will need to carry out a follow-up right to work check when their application has been granted and a new biometric residence permit has been issued.

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Some of our Tier 2 (General) sponsored have gone back to their home country and are working remotely. They may stay there for several months. Is this ok?

Yes, as long as they continue to be employed by you – and paid, unless they are taking unpaid leave (see above).

There are two points to watch.

The first is that if your sponsored worker’s visa expires while they are outside the UK they will be hit by the Tier 2 cooling-off period, meaning that they cannot normally apply for another Tier 2 visa for the next 12 months. The Home Office has not said whether that this rule will be suspended.

The second is that the sponsored worker’s absences from the UK could have implications for a future application for indefinite leave to remain – see below.

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Indefinite leave to remain

 

I have a long-term UK visa which leads to indefinite leave to remain. I may be stuck outside the UK for several months. Will this affect my application for indefinite leave to remain?

If you have a visa which leads to indefinite leave to remain you cannot normally spend more than 180 days outside the UK in any 12-month period during the five-year qualifying period. This rule does not apply to every visa category and the way it works depends on the date when your visa was issued.

The Home Office enforces the 180-day limit strictly but will consider granting indefinite leave to remain if the absences are over the limit and the applicant provides evidence that the excess absences were due to serious or compelling reasons. According to the Home Office guidance, serious or compelling reasons will vary but can include serious illness of the applicant or a close relative, a conflict, a natural disaster, for example, volcanic eruption or tsunami.

The Home Office has confirmed to us that the coronavirus pandemic qualifies as a serious or compelling reason in this context and applicants will not be penalised for absences over 180 days, where the excess is because of travel restrictions in place due to the coronavirus pandemic.

If you are staying outside the UK for an extended period because of the coronavirus pandemic you should keep evidence of the reason. For instance, if you have a Tier 2 (General) visa you should ask your employer to send you an email confirming that it has agreed that you should work remotely overseas until it is safe to return to the UK. Other examples include keeping evidence of travel bans in specific countries, closures of visa application centres and caring for family members.

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Right to work checks
 

How do we do right to work checks on new employees who are starting work from home?

The Home Office has confirmed that right to work checks can now be carried out over video calls.

If you want to carry out a right to work check in this way you will need to ask the employee to send you a scanned copy or photo of the relevant right to work document(s) – usually their passport photo page and/or biometric residence permit. Arrange for them to show the original document to you on a video call before they start work. Record the date of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”. When these temporary COVID-19 measures end you will have 8 weeks to carry out a retrospective check on the original document. For full details see the Home Office guidance.

You can avoid this process by carrying out an online right to work check if the person has a biometric residence permit, or a biometric residence card (these cards are issued to family members of EEA nationals) or pre-settled or settled status under the EU Settlement Scheme. The employee will have to log into the Government website here to get a right to work share code. They will need to give you that share code and their date of birth. You will then be able to carry out an online right to work check here. For detailed information about how to carry out a right to work check see the employer’s guide to right to work checks.

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For more information please do not hesitate to contact a member of the immigration team.

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