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Immigration matters By Maria Fernandes

The pandemic and what it means for you

Last month, I discussed the new points based system which is likely to open up the labour market and will be of significant interest once the lockdown is over and life returns to the new normal. Of particular interest to the hospitality industry will be the return of Restaurant Managers and Hotel Managers. These positions and others will be examined in a future article.  For now the main area of concern is the coronavirus pandemic and the impact  of this on migrant labour issues. The Home Office have issued guidance in a number of areas which change regularly. The changes described below were updated on 06/01/2021.

Employers who have sponsor licences

•             do not need to report student or employee absences related to coronavirus.

•             do not need to report employees who are working from home due to coronavirus.

•             Sponsored employees can be furloughed as their payments will not be considered as a “recourse to public funds”.

•             If a Certificate of Sponsorship (CoS) has already been issued and the applicant has not applied for a visa because of the pandemic, it is still possible for them to apply for a visa even though the date on the CoS has passed.  An explanation for the delay must be provided and supported with evidence where possible.

•             If an employer is sponsoring a new employee and their visa application is pending they can start work before their visa application is decided if the sponsor assigned their CoS before 1 January 2021 or it is a Health and Care Visa.  For CoS assigned after 1 January 2021, (with the exception of Health and Care visas) applicants must wait for the decision before starting work.

Right to work checks

The following temporary changes have been made to the right to work checks which, it should be noted, apply to all employers even if they do not have a sponsor licence. Sponsors will be aware that there are hefty penalties where checks are not properly carried out. 

•             checks can now be carried out over video calls where documents must be examined and notes retained

•             job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals

•             Employers must use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents. Where there is a positive notification this protects the employer for 6 months. 

Employers will be required to carry out a retrospective check within 8 weeks of the Covid-19 measures ending.

Overseas applicants

The Covid Visa Concession Scheme (CVCS) applies for those who are overseas and had a current visa when they left and are unable to return due to the pandemic. It covers those whose leave has expired or is about to expire before they can return to the UK. The other routes eligible for this concession are those where, if the person was in the UK with their previous leave, they would be able to apply for leave to remain.

It will allow a person to travel without a visa and on arrival will be granted 3 months leave outside the Immigration Rules (LOTR) on the same conditions as their previous grant of leave. This concession can only be used once.  After returning to the UK, the person must submit their application in the normal way before the expiry of the 3 month period.

Break in continuous residence

The Immigration rules have a “continuous residence” requirement and a break in residence can adversely affect a person’s status. For example it could affect a person who has indefinite leave and cannot travel within the required 2 year period. Normally leave lapses under the regulations. The Home Office have clearly stated that “Absence from the UK as a result of a pandemic, such as Covid-19, will not count as a break in continuous residence.” It is important to retain any evidence of reasons for being unable to travel.

The Home Office have a coronavirus helpline [cih@homeoffice.gov.uk] which must be the first point of contact. The Home Office have emphasised throughout that the permission granted as a result of the pandemic is not leave to remain as such but a temporary solution. It is currently described as a grant of “exceptional assurance”. The legal position of this is unclear. For now, the concessions provide a way forward for employers and migrant employees. 

Maria Fernandes

Fernandes Vaz Solicitors

87 Wembley Hill Road

Wembley

Ph: 02087330123

Email: info@fernandesvaz.com www.fernandesvaz.com

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