New Impacts of COVID-19 on Tier 2 employers

The Impacts of COVID-19 on Tier 2 employers

The recent COVID-19 pandemic has caused strict restrictions on travel and this could have implications for complying with sponsor licence duties. If you are a Tier 2 employer, you may have to implement changes to your business in order to keep up with the impacts of COVID-19 on Tier 2 employers.

Tier 2 sponsor licence holders have a number of reporting and record keeping duties in relation to the sponsored employee that need to be updated on the sponsor management system (SMS). Examples include changes to start dates or work locations and changes to salaries, whether it be employees taking unpaid leave or salaries being cut.

Home Office guidance

The Home Office published guidance on 24 March 2020 for Tier 2 licence holders stating that sponsors are not required to withdraw sponsorships, nor will they face compliance sanctions for failing to report absences or other circumstantial changes where they have been a direct result of the COVID-19 outbreak.

However, other changes will need to be reported in the usual way, and sponsors should keep a clear record and paper trail of the reason for employees absences to demonstrate that the period of absence was due to COVID-19 related concerns in case of future audit.

Unfortunately, this latest guide containing information for sponsors has since been removed. However, the accompanying press release confirms the Home Office’s intention is still to waive a number of the requirements that usually apply to them, such as allowing sponsored workers to work from home in accordance with the Government’s advice to the public on COVID-19. It is anticipated that the Home Office may at a later date publish a separate guidance for sponsors and other employers.

Changes in Tier 2 employer duties:

  • Once a visa has been granted Tier 2 migrants can only delay start dates by up to 28 days.
    • Due to COVID-19 current travel restrictions, Tier 2 worker will be unable to enter the UK and so the start date may be delayed. Delays should be reported on sponsor management system.
  • Many Tier 2 workers will now be working from home, and these changes are to be reported within 10 working days.
    • Due to COVID-19 it has been confirmed that working from home temporarily in this circumstance is not a change of work address requiring an SMS report. Sponsors should, however, report any other changes and ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties.
  • Tier 2 workers cannot take more than four weeks unpaid leave per year and where this does happen the Home Office requires an employer to withdraw sponsorship.
    • Due to the COVID-19 outbreak the Home Office indicated that if this occurs you need not withdraw sponsorship.
  • Tier 2 licence holders have to report any salary changes on the sponsor management system within 10 working days.
    • If a drop in salary takes a Tier 2 employee below one of the salary thresholds for Tier 2, such as the £30K minimum for the visa route, then they will have to make a new visa application.
  • Tier 2 sponsors have also always been allowed to permit sponsored workers to take up to four weeks’ unpaid leave during a calendar year. However, the current Sponsor Guidance states that if a sponsored worker takes more time off on an unpaid basis, the sponsor must cease to sponsor the worker
    • Due to COVID-19 the Home Office has confirmed that it is relaxing this for now and has stated that ‘sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when an employee is absent from work without pay for four weeks or more’.

Sponsors have always been permitted to reduce a sponsored workers’ pay and work hours. This will continue to be permitted as long as the new rate of pay is not below the current appropriate rate requirements for the sponsored role and the hours meets the requirements set out in the Sponsor Guidance.

It is important to also note, that where a sponsored worker is being made redundant, the sponsor would need to report the withdrawal of sponsorship in the usual manner.

  • UKVI will then eventually curtail the sponsored worker’s leave to remain (usually to 60 days).
  • If the sponsored worker is able to find a new role and sponsor that can issue a CoS, they will be able to apply for further leave to remain.
  • If they are unable to do so, but are also unable to leave the UK, they should be able to benefit from a number of provisions.

Although some measures have been relaxed on a temporarily basis, sponsors must still perform the required right to work checks on their sponsored workers, as compliance will ensure that a statutory defence against illegal working sanctions can be put forward.

Sponsors should also take reasonable and pragmatic decisions concerning issues that are directly related to the pandemic and we would recommend that the reason for decisions are noted.

Coronavirus Job retention scheme

The government published further guidance for employers on the Coronavirus job Retention Scheme on 26 March 2020. You can find this here. The guidance does not state that employers are restricted from being able to place sponsored workers onto the scheme and the Home Office has also confirmed this to us.

At the moment, the Sponsor Guidance has not been updates to confirm that absences from work because sponsored workers have been placed onto the scheme are permitted. The Home Office has stressed a number of times that it will not take compliance action in relation to decisions sponsors make on absences that are due to the pandemic. As such, we are not expecting there to be any issues if a sponsor places a sponsored worker onto the scheme.

If a sponsored worker is placed on the scheme and they are to be paid at a reduced rate, this will need to be reported in the usual way. At the moment, there is no indication that sponsors may pay a sponsored worker who has been placed on the scheme less than the current appropriate rate requirements for sponsored roles.

We recommend that sponsors and employees seek advice from us if they are unsure whether a course of action they are considering or currently engaging in might impact either the business’s sponsor licence duties or an employee’s obligations.

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