COVID-19 EXPERT LEGAL INSIGHTS

UK immigration FAQs for UK visa holders and businesses

Last updated: 28 April 2020

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

All UK visa application centres are closed The UK is in lockdown.
 

The Home Office has published limited guidance for visa applicants and temporary UK residents and guidance for Tier 2, 4 and 5 sponsors.  It has also circulated two factsheets which overlap with the online guidance: a factsheet for visa holders and short-term residents and a factsheet for sponsors. The factsheets are updated from time to time but for some reason they are not published online.

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 apply for a UK visa at the moment?

No. All UK visa application centres are closed so it is not currently possible to apply for a UK visa.

You can still submit an online visa application, which is the first step in the process. For most people there is no point in doing this until the visa application centres reopen because to complete the process you have to attend a centre to hand in your passport and enrol your biometrics. In the meantime you can prepare your application so that it is ready to submit as soon as the visa application centres reopen.

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 need to email the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk. Include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. When the visa application centres reopen the Home Office will contact you to arrange for a replacement visa to be stuck in your passport.

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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.

All UKVCAS centres are now closed. There is no way of knowing when they will reopen. In the meantime it is not possible to book a biometric appointment

You are supposed to attend a biometric appointment within 45 days of submitting an online application. This time limit needs to be waived by the Home Office.

The Home Office urgently needs to update its guidance on this.

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) between 24 January 2020 and 31 May 2020. If you are in this situation the Home Office guidance says that until 31 May 2020 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.

The problem is that to complete the application you will need to attend a UKVCAS centre as part of the process, and at the moment this is not possible – see above.

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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 all the test centres are closed.

The Home Office needs to issue guidance on this.

In the meantime, if your visa is about to expire you should submit your online Home Office application. 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.

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

The Home Office guidance says that no individual who is in the UK legally, but whose visa is due to or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future.

If your visa expires (or expired) between 24 January 2020 and 31 May 2020 you can contact the Home Office’s Coronavirus Immigration Team / Coronavirus Immigration Help Centre to ask for your visa to be extended to 31 May 2020.

Take advice before doing this because if your visa expires and your request is refused you will find yourself in a difficult position.

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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 not said if this rule will be waived. We have to wait for further guidance. In the meantime 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

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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 for a visa from outside they cannot start work until they have attended the biometric appointment and received a visa. At the moment it is impossible to say how long this will take.

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 not confirmed that the coronavirus pandemic qualifies as a serious or compelling reason in this context but it is obvious that it should.

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. 

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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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