COVID-19 – immigration implications

The novel coronavirus (COVID-19) has had a significant impact on UK immigration services and compliance issues.  Key developments include:

• Sponsored worker absences - absences for COVID-19 reasons (eg, quarantine, or caught by travel restrictions) need not be reported in the usual way, provided that they are authorised by the sponsor.

• Attendance at work - sponsors must normally withdraw sponsorship of an employee who is absent from work without pay for four weeks or more.  The Home Office has confirmed this is not required in exceptional circumstances and that it will not take compliance action against individuals or sponsors in such circumstances.  Sponsors will need to determine on a case by case basis whether a COVID-19 related absence constitutes exceptional circumstances, but in many instances this is likely to be the case.

• Right to work checks – in some cases, travel restrictions or social distancing guidance may mean it will not be practicable for employers to conduct full right to work checks on prospective employees.  The rules in relation to right to work checks have not, however, been amended.  Employers will need to asses on a case by case basis the appropriate actions to take, including use of technology (eg, Facetime or Zoom) to conduct checks, or obtain comfort on the status of a prospective employee.  Repeat right to work checks must still be conducted.    

• Chinese nationals - leave to remain for Chinese nationals in the UK which expires between 24 January and 30 March will be automatically extended until 31 March 2020.  The Tier 2 rules have also been flexed to allow Chinese nationals to switch from the Tier 2 (Intra Company Transfer) to the Tier 2 (General) category in the UK (ie, not have to leave the UK to apply) if their Tier 2 (ICT) visa expires between 24 January and 30 March 2020.  All other eligibility rules for Tier 2 (General) visas will apply.  It remains to be seen whether similar flexing of the rules will occur for nationals of other countries in due course. 

It is likely that further rule changes will be made, and updated guidance issued, in the days and weeks ahead. 

Many of the implications of COVID-19 may arise in the future after life returns to ‘normal’.  Whilst certain actions may seem to be ‘common sense’ now, this may not be the case several years into the future.  For example, when a migrant applies for an extension or indefinite leave to remain, the issue of overstaying or absences will be relevant.  The Home Office will continue to scrutinise sponsor records during audits.  The dates and implications of COVID-19 may be a distant memory.  Visa holders and sponsors should therefore ensure they retain robust and detailed records of matters such as absences and unpaid leave (eg, dates and reasons why) in readiness for future immigration applications and Home Office audits.