The Home Office have confirmed that employers can continue to employ an employee who is waiting for their Tier 2 or 5 visa application to be decided if:-
- They have assigned them a Certificate of Sponsorship
- The employee submitted their application before their current visa expired
- The role they are employed in is the same as the one on their Certificate of Sponsorship
The employer’s reporting responsibilities for an employee start from the date of assignment of the Certificate of Sponsorship, not from the date that their application is granted. However, such employers will not be able to report information to the Home Office using the sponsor management system.
Employers must however ensure that they record and maintain all the relevant information set out in the sponsor guidance on their own systems. Any changes that are likely to impact the eventual consideration of the employee’s visa application should be updated on the Certificate of Sponsorship as normal.
If the employee’s application is eventually rejected as invalid (e.g. because the incorrect documentation was supplied or the correct fee was not paid) or refused the employer must terminate their employment. Employers need to be aware that applications may take many months to process.
Employers can temporarily reduce the pay of sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower. Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same. These reductions must be temporary, and the sponsored employee’s pay must return to at least previous levels once these arrangements have ended.
Sponsored employees can work from home and such arrangements do not currently have to be reported to the Home Office.
The Home Office have also said that they will not take enforcement action against employers who continue to sponsor employees despite absences due to coronavirus and that such absences do not need to be reported. This can include absences due to illness, their need to isolate or inability to travel due to travel restrictions.
The Home Office guidance clarifies the impact of s3C Immigration Act 1971 in employment cases. The purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
Where an in time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires. S3C extends the person’s existing leave until the application is decided (or withdrawn)
For advice on any immigration aspects caused by COVID-19 please contact Tim Cary. For employment law advice, contact our Employment Team via email or by calling 01603 610911.