However, this guidance is complicated. If actioned incorrectly, it could have serious consequences for the business.
It is very important to note that businesses who have a sponsor licence to employ migrant workers are NOT exempt from completing their sponsorship duties during the current pandemic. Below, we look at certain situations which could impact your business if you have a Sponsor Licence.
The Home Office has stated that they will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus. Therefore, at present, sponsors are not required to report any absences from students or employees sponsored under Tier 2, Tier 4 or Tier 5, if the absence has been as a result of the coronavirus pandemic. This includes a sponsored worker not showing up for their first day of work or being absent from work for more than 10 consecutive days.
At the same time, sponsors do not need to withdraw the sponsorship for affected employees who have been absent from work for more than four weeks without pay.
Prior to the pandemic, Sponsors were under a duty to update the Home Office as to where the individual was working from home. This has been relaxed, subject to the individual now working from home, as a result of the coronavirus pandemic. Any other changes will need to be reported through the Sponsorship Management System.
A sponsored employee can be furloughed. However, this is subject to certain conditions being satisfied. It is important to note that the furlough scheme is designed to allow employers to retain employees who would “otherwise be at risk of being laid off” due to the impact of the coronavirus. Therefore this must be part of the employer’s policy to avoid redundancies and further, there must not be unequal treatment between sponsored and non-sponsored employees. The rule must be the same for both.
When a sponsored employee is furloughed, the salary that they receive may drop below what has been notified to the Home Office. If there is a drop in the sponsored worker’s salary, this will need to be notified to the Home Office within 10 working days from the change taking place. If the salary falls below the salary threshold required for that role, then the sponsorship should be withdrawn. After the furlough scheme comes to an end, the salary of the sponsored worker must return to at least what they were being paid prior to being furloughed. This change of salary should also be notified to the Home Office.
It should be noted that a sponsored employee may choose to increase their income through additional work. This is only permitted for shortage occupation roles or where the employee takes on an identical role at the same level as their sponsored position. At the same time, the additional employment must ensure that they follow the conditions stipulated on a sponsored employees visa.
If a Certification of Sponsorship has been issued but the individual has not applied for a visa then the visa application will still be accepted even if the employment start date has changed from what was stated on the Certificate of Sponsorship. The Home Office may still accept a Certificate of Sponsorship even if it has become invalid due to the employee not being able to travel as a result of the coronavirus.
If a sponsor has issued a CoS (Certificate of Sponsorship) to an employee who has not yet applied for their work visa, the visa application will normally still be accepted and considered even if the employment start date on the CoS has changed. These applications will be assessed and decided on a case by case basis. For example, the Home Office may still accept a CoS if it has become invalid because the employee was unable to travel as a result of the coronavirus. However, this is considered on a case by case basis.
Sponsored employees, whose visa applications have been approved, are not able to start working for their new employer unless they have received their biometric resident permit from the Home Office. The purpose of the biometric resident permit is to evidence that the person has the right to work in the UK.
Sponsored employers can still terminate sponsored workers employment or make them redundant. The position with respect to reporting has not changed in this situation. The Sponsor will still need to report the termination/redundancy on that worker’s file no later than 10 working days from the last day of the sponsored worker’s employment.
Subject to the employee submitting their extension application online, before their visa expires, the terms of that person’s current leave will continue to remain in force until such time as a determination has been made by the Home Office. This means that the person can continue to work for their employer beyond the expiry of their visa. However, it is recommended that the employers keep a record of this and continues to monitor this regularly.
At present, individuals are unable to attend biometric enrolment appointments. Therefore there will be a delay in a decision being made. An in-time application being made will protect both the sponsor and the sponsored employee from breaching any immigration rules.
At Lupton Fawcett, we help with all issues surrounding Sponsor Licences. We also provide training on Sponsorship Management Systems. Immigration law and responsibilities are becoming complex and the responsibilities of businesses are constantly growing. For all your immigration needs, contact us at Lupton Fawcett to discuss how we can help you.
Arif Khalfe is the Head of our Immigration Department. Please contact Arif in the first instance with any immigration issues you may have.
If you are concerned your business has made errors in the uptake and administration of the coronavirus job retention scheme (CJRS) or are facing the prospect of a Furlough Fraud investigation by HMRC, our team of specialist Furlough Fraud Lawyers can offer you tailored legal advice and specialist representation.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.