Following on from their concession that was first introduced on the 27 February (see link to earlier bulletin) and due to the escalating impact of the coronavirus and the growing restrictions on travel, the Home Office has as anticipated extended the concession and issued new guidance on how applications will be handled during the crisis. Under the revised concession, published on 24 March, provision is made for migrants who are currently in the UK and who are unable to either extend their visa or to leave the UK before their current visa expires. Guidance is also provided for those who are abroad at the moment and unable to complete their visa process, but the concession fails to address a number of important areas.
Key points for employers to note:
Overseas nationals currently in the UK
- If their leave expires between 24 January and 31 May 2020: Their visa will be extended to 31 May 2020 if they are unable to leave the UK due to the travel restrictions or self-isolation as a result of COVID-19. If their visa is expiring during this period, they will need to update their records by contacting the Coronavirus Immigration Team (CIT). They will need to provide, their full name, date of birth, nationality, previous visa reference number and the reason they are unable to return to their home country. They will be notified once their request has been received and when their visa has been extended.
- If they are applying for a long-term stay: Migrants will be allowed to apply from inside the UK to switch to a long-term visa until 31 May 2020. This waives the normal rule preventing in-country switching, although all of the other usual requirements must still be met. This includes those whose leave has already been automatically extended to 31 March 2020. This application can be done online and the terms of their current leave will remain the same until the application has been approved.
The concession makes it clear that anyone who is in the UK legally, but whose visa is due to or has already expired and who cannot leave due to C-19 travel restrictions, will not be considered an overstayer. However, unlike the original concession under which their visas were automatically extended up to the 31 March, under the updated concession such individuals must actively contact the Coronavirus Immigration Team to obtain an extension. Baker & McKenzie can of course assist with this process and will be reaching out when appropriate.
The Home Office has also provided further clarity regarding sponsored migrants who have been forced to work on a full-time basis from home. Under normal circumstances, sponsors are required to inform UK Visas & Immigration regarding a change of work location, but as an exception to this rule due to the C-19 issue such a change does not have to be reported.
Under the current lockdown measures, most people are of course being advised to stay at home and when possible to work from home. However, despite the issue being flagged, the Home Office hasn’t issued any additional guidance to employers regarding how they should complete a valid right to work checking when most people are working from home. Many employers are still trying to move forward with their recruitment plans, but the current lockdown measures make it difficult for them to comply with the requirement to check a prospective employee’s original right to work document i.e. rather than rely upon a scanned or copy document. In this respect, although there is a workaround for any candidates who hold a BRP card, those relying upon a passport must provide the original document. It was hoped that discretion would be exercised to allow a copy passport to be relied upon for a limited period, but no announcement has been made on that front.
Overseas nationals outside the UK
- Migrants with a confirmed visa appointment: If their Visa Application Centre (VAC) is now closed, they will be notified that their appointment will be cancelled. A number of English language test centres have also been adversely affected and their scheduled tests may also be cancelled.
- Migrants with a pending application: If they want to have their passport returned and have paid for a return courier, their documents will be returned as long as the courier route remains open. If a courier service was not paid for, applicants should contact the Visa Application Centre directly and arrange for delivery of their documents. Once the VAC's re-open, priority will be given to returning all documents.
The concession fails to address the position of migrants who already have an approved visa. Under normal circumstances such individuals have to travel to the UK with a 30 day window to activate their visa. In this respect, if they are unable to travel during this window, they are normally required to apply for a replacement visa which of course takes times and incurs additional cost. It is also unclear whether visa applicants who have already submitted their application, but due to the delay need their passport back before the application has been processed, will be able to get their fees refunded. The position is also unclear regarding long-term visa holders who have returned to their home country until the crisis passes and how their extended absence might impact any future application for permanent residency in the UK, particularly if they go over the 180 day threshold.
The extension of the concession for overseas nationals who are currently in the UK is of course welcome and will provide that cohort of people with more certainty, but the Home Office has failed to address a number of key areas where further clarity and discretion is needed leaving many migrants uncertain about their current position and some employers unsure about how to meet a key right to work compliance obligation.
Further details regarding these changes can be obtained by reaching out to your usual contact in our Global immigration & Mobility team.