In these exceptional times it is easy to forget that the impact of the pandemic in the UK is not just felt by the “settled” workforce here. There are many people on Tier 2 work visas that are dependant upon sponsorship by their UK employer. Those visas come with strict conditions, not only regarding active employment in the role for which the individual is sponsored, but where the individual works and the amount of pay they receive. This has created tension and uncertainty for work visa holders and their sponsors.
So what is the Home Office’s position if/when the crisis results in lay offs and/or salary reductions?
The Home Office/UK Visas and Immigration (“HO/UKVI”) released some guidance towards the end of March and this was expanded on 3 April 2020, to provide some much needed clarity on its position:
Is the sponsored employee’s visa still valid if they are absent from work?
If the absence is due to coronavirus, current guidance is that no enforcement action will be taken against the sponsor. This covers a broad range of absences, such as illness, self isolation, or travel restrictions, so long as they are related to the pandemic.
Does the employer need to report absence on the sponsorship management system?
No. Not if they are related to coronavirus (see above)
What about working from home?
This does not have to be reported to the extent that it is due to coronavirus. However, “other changes to working arrangements” must still be reported in the usual manner through the Sponsorship Management System.
Does sponsorship have to be withdrawn after prolonged absence?
HO/UKVI says it will keep this under review, but has confirmed that sponsorship will not have to be withdrawn for an employee who is absent from work without pay for more than four weeks. It seems the entirety of such absence must be related to coronavirus in some way for a sponsor to be confident that they benefit from the concession.
Is it possible to reduce the salary of the sponsored employee without breaching the conditions of their leave/sponsorship?
The devil is in the detail here. HO/UKVI says a sponsor can reduce the pay of sponsored employees to the lower of 80% of their salary or £2,500 per month (consistent with the limits to grants under the Coronavirus Job Retention Scheme).
However, the reductions: (a) ‘must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same’;
and (b) reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended’.
It is not clear how HO/UKVI intend to police point (a) above, or indeed the precise scope of its meaning. It is also not explicit in the guidance that such reductions are permitted even if they take pay below the “appropriate rate” and/or visa minimum for the individual, however given the significant amount of the permitted reductions this seems likely to be the intention.
Can an individual to whom you have assigned a Certificate of Sponsorship still apply for their visa?
Yes. The guidance confirms that although the date of arrival/start might be impacted, it will not refuse visa applications purely on the basis that the CoS was issued after the start of the lock down in the UK.
Full details of the updated guidance can be found here