Alex Christen and Sioned Thomas review the remaining concessions in place to the immigration rules in the wake of the pandemic.
Employee absences caused by COVID-19 still do not need to be reported, and the Home Office position remains that action will not be taken against sponsors who continue to sponsor employees who are absent in these circumstances. Similarly, sponsorship does not need to be withdrawn if a sponsored employee has been absent without pay for over four weeks because of personal reasons linked to the virus.
Home working due to the virus does not have to be reported. However, sponsors should check the reason for any current home working arrangements for sponsored workers to see if the reason for the home working has changed (and needs to be reported).
Somewhat unexpectedly, right to work checks can still be done via video call. This concession was due to end in April, but it has been extended to 30 September 2022. Please see our short video here for more information on current right to work check rules.
Employers may be able to accept out of date passports showing a right to work if that country has said that due to the impact of the virus, the document should be considered valid. In this situation, employers should contact the Employer Checking Service for verify the status of the document.
Exceptional assurance acts as a short-term protection against any adverse consequences after a person’s leave has expired. An individual will be able to apply for exceptional assurance if they have intended to leave the UK to return to a country or territory but have not been able to do so due to closure of borders or quarantine facilities being temporarily full.
The deadline to apply for exceptional assurance has now been extended to 31 May 2022.
Applications need to be submitted to firstname.lastname@example.org with details of why the extension is required and supporting evidence to show why an individual has been unable to leave the UK. This evidence can include the inability to book quarantine accommodation or confirmation that a country’s borders are closed.
Crucially for employers, if the expired visa allowed a person to work, they may continue to do so whilst awaiting the decision of their application and also during their period of their exceptional assurance if it is approved. This is incredibly useful as employers have the certainty of being able to continue to employ such individuals for a longer period.
If an individual’s VAC centre is closed due to coronavirus restrictions, they are able to apply online and select another VAC in any country worldwide here. The individual will be able to submit their application and biometrics online, but they will need to ensure they are permitted to travel to that country before making the application. The online application can be used to make any type of UK Visa application and will be available until 30 June 2022.
Applicants who have received an endorsement from a Global Talent endorsing body but have not been able to apply within the 3-month deadline due to COVID-19 related reasons may still be eligible. If you are in this situation, you should continue to submit your application but also provide an explanation of the delay. Applications will be reviewed and decided on a case-by-case basis so including as much information as possible about the delay will be helpful.
Concessions for NHS workers are still in force allowing them to work at any NHS hospital during the outbreak without notifying the home office, as long as their sponsor can continue with their sponsor duties such as monitoring and reporting work activity. NHS staff remain able to work as many hours as they wish in any role, regardless of skill level.
There continue to be no restrictions on the number of hours student doctors and nurses can work for the NHS to get more doctors and nurses on the frontline. There are also still no limits on the number of hours migrant workers can work for the NHS where it is their second job.
Health and social care workers can continue to begin working for their sponsor before their visa application is decided providing that they have been assigned a certificate of sponsorship, they applied in time and the job they want to start work in is the same as listed on their certificate. This concession has not applied for other employees for some time and in most other cases, employers must wait for a candidate to receive their visa before they can start work.
The UK Government has confirmed that if an individual had a 90-day vignette that has subsequently expired, they must apply for a replacement by completing an online form. They are also required to resubmit their biometric data and pay £154 to replace the vignette.
It is strongly advised that an application for a new visa or a replacement of an expired vignette is only completed if the individual is confident that they can travel to the UK. The new vignette will only be valid for a period of 90 days, so if the individual cannot travel during this time, they may need to apply again to update the vignette.
Employers can accept a vignette as proof of an individual’s right to work, but they must note the expiry date of the vignette and make sure they do a further right to work check once the individual has their biometric residence permit. Since 6 April 2022, this follow up check will have to be conducted using the Home Office’s online checking service.
If an employee’s visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if they didn’t make an application to regularise their stay during this period. However, if they did not make an application to regularise their stay or submit a request for exceptional assurance, they must make arrangements to leave the UK. You may no longer be able to employ them lawfully in the UK and advice should be taken as soon as possible.
The individual can apply to extend their visa for a further 12 months (taking them beyond the usual 2-year maximum stay on Start-up visas). This may be helpful for employers employing people on Start-up visas that are due to expire. Extension applications must be made by 30 September 2022.