Will the COVID-19 outbreak result in catastrophic compliance failures for Tier 2 Sponsors?

Following the pandemic, working conditions may have changed; many of us have gone from having morning coffee with colleagues to now having virtual coffee mornings.   Tier 2 & 5 Sponsors, should note that while the working environment may have relaxed from formal to clothing to more relaxed at home loungewear, it is imperative that all sponsor and compliance related duties and responsibilities must be maintained during these unprecedented times.
Failure to comply with these requirements can have catastrophic outcomes such as suspension or revocation of the sponsor licence.  In the unfortunate event of a revocation, all skilled migrant employees will have their visas curtailed and they will be required to leave the United Kingdom if they cannot switch into another visa category.

Holding a Tier 2 Sponsorship Licence comes with a great level of responsibility.  The requirement to comply with sponsor duties is to essentially prevent illegal working and requires sponsors to ensure organisational systems and policies are in place to ensure compliance duties are met.  Sponsorship duties are in place to ensure the following:

• prevent abuse of assessment procedures
• capture early any patterns of migrant behaviour that may cause concern
• address possible weaknesses in process which can cause those patterns
• monitor compliance with Immigration Rules
(Please note: some of these duties apply to all sponsors, whilst others are specific to those licensed under certain tiers or categories).
While the purpose behind the implementation of these duties has been established, the important question which needs to be addressed is what are these duties and how will COVID-19 impact them?
• monitoring a sponsored worker’s attendance/absences;
• reporting any changes to the sponsored worker’s employment;
• carrying out right to work checks;
• retaining documents as set out in Appendix D of the Sponsor Guidance;
• complying with the law; and
• cooperating with the Home Office.
COVID-19 has resulted in many travel restrictions which in turn can impact an employee’s start date or changes to the work location such changes need to be reported within 10 working days on the Sponsors Management System.  COVID-19 has financially impacted the economy and may result in sponsors wishing to terminate jobs or reduce salaries, once again these changes will need to be reported.  We discuss in detail key issues which are likely to arise as a result of this pandemic:
1) Delaying the ‘start date’ for a Tier 2 Migrant:
The Home Office’s Tier 2 Guidance stipulates that a Tier 2 migrant is permitted to delay their start day up to 28 days following the grant of their visa and such delays must be reported on the Sponsors Management System.
In a response to combat the global outbreak many countries are restricting travel by way of border closures or a reduction in the number of chartered flights. As a result, some migrants may not be in a position to enter the United Kingdom. And in the event, migrants are in a position to travel they may consider deferring travel plans in order to ensure if required they will be in a position to access medical care with ease and familiarity.  Further, VFS Global and TLS have announced their temporary closure resulting in a delay in applicants receiving their passport with the entry clearance vignette.
Should you find yourself in a position where a migrant’s start date does have to be delayed beyond 28 days, please contact us for further guidance.
2) Working from Home in accordance with the Government’s advice:
During this pandemic, most businesses are operating remotely.  Any changes in the Migrant’s work location need to be reported on the Sponsor’s Management System within 10 working days.  However, the Home Office has confirmed that working from would be considered as a temporary measure and therefore, there will be no need for this change to reported on the Sponsors Management System.  Sponsor’s will still be required to report other changes and adhere with their other reporting and monitoring duties.
3) Right to Work Checks:
Tier 2 sponsors must have a copy of the migrant’s passport and visa on file. Right to work checks have been temporarily adjusted due to coronavirus (COVID-19). This is to make it easier for employers to carry them out.
As of 30 March 2020, the following temporary changes have been made:
• checks can now be carried out over video calls
• 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 should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Checks continue to be necessary and Sponsors must continue to check the prescribed documents listed in right to work checks: an employer’s guide It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
It is important these are temporary measures, following which Sponsors will be required to adhere to the previous right to work checks.

4) Unpaid Leave:
Tier 2 Migrants are not permitted to more than 4-weeks of unpaid leave per calendar year.  In circumstances where a migrant takes more than 4-weeks of unpaid leave, Sponsors are required to withdraw sponsorship.  However, the Home Office published guidance for Tier 2 Sponsors in response to COVID-19 on 17th March 2020 stating that sponsors are not required to withdraw sponsorship and will not face compliance actions if the unpaid absence is due to the COVID-19.  The guidance was published around the time school closures were taking place around the country.  Therefore, the guidance compassionately acknowledged that absences are likely to occur in response to childcare arrangements not being available.
It should be noted that the guidance published on 24th March 2020 has removed of the information for sponsors contained in the previous version. However, the accompanying press release indicates the Home Office’s intention is still to waive a number of the requirements that usually apply to Tier 2 Sponsors discussed above.  Further guidance is likely to be published in the coming weeks, it is vital Tier 2 Sponsors remain on top of the new guidance.  In the interim Sponsors’ who wish to see clarity on this specific issue should contact us for further advice.
5) Reduction in Salary/Terminating Employment
During these times of financial uncertainty Tier 2 Sponsor’s may consider a pay cut or termination of employment:
Salary Reduction: Any change in salary will need to be reported on the Sponsors Management system within 10 working days.  If a pay cut takes the employee below the requirement they will need to make a new visa application.  The require salary level for a Tier 2 sponsored worker’s gross salary must always be above the minimum expected amount for the particular Tier 2 visa category (£20,800 for ‘new entrant’ Tier 2 (General), £30,000 for ‘experienced hire’ Tier 2 (General) or £41,500 for Tier 2 (Intra Company Transfer)) or the minimum for the type of job, whichever is higher.  Should you find yourself in these circumstances, please contact us for further advice.
Termination of Employment:  If a Tier 2 worker’s employment is terminated, the sponsor must report the end of the employment on the sponsor management system within 10 working days of their last day of employment. This will lead to the Home Office curtailing the Tier 2 worker’s visa to 60 days. If the sponsored worker has less than 60 days remaining on their visa, they will be able to see out the remainder of their time in the UK.  It should be noted that this could give rise to a potential employment claim on the basis of discrimination, we can provide advice in that respect.
As Immigration Solicitors, we remain up to date with the changes to the law and on compliance related issues offering mock audits and compliance packages. We would recommend that sponsors seek advice from us if they are unsure of whether a course of action, they are considering might impact on the business’s sponsor licence duties. Failure to do so is serious as it can jeopardise the licence and the immigration status of sponsored workers.  We are currently offering a 10-minute free phone consultation to arrange please email info@redfernlegal.com or call us on 0203 6179273.
Sonum Behar