COVID-19: FAQs for employers who are sponsorship licence holders

With the UK in the midst of the coronavirus pandemic and restrictive travel and quarantine measures being imposed, our Head of Immigration and Partner, Julie Moktadir, has addressed key concerns that organisations with sponsorship licences may have.

Are my current Tier 2 and Tier 5 sponsorship licence duties affected?

Ordinarily, Level 1 Users on an organisation’s sponsorship licence are required to report when a sponsored worker is absent, using the Sponsor Management System (SMS). Relevant absences include, if a worker does not attend their first day of work and if the worker is absent, without permission, for more than 10 consecutive working days.

The Home Office have recognised that the Coronavirus will prevent many workers from coming into work for a variety of reasons, such as a result of illness or quarantine measures. In light of this, they have confirmed in their guidance, found here, that Sponsors do, ‘not need to report student or employee absences related to coronavirus’.

Licence holders also usually have to cease the sponsorship of a worker if they are absent from work without pay for 4 weeks or more in any calendar year, unless the absence falls within one of the listed exceptions such as maternity leave or sick leave. The Home Office have indicated in their guidance that an exception will apply in this situation and that no compliance action will be taken against sponsors who continue sponsorship for this reason.

Employers must still comply with all other reporting duties and record keeping duties which includes a duty to retain a record of sponsored workers absences. We would therefore advise employers to retain correspondence regarding any coronavirus related absences and seek legal advice if they are unsure of any action they must take.

Can a sponsored worker’s start date be delayed if they are unable to travel to the UK?

At the time of writing, the Home Office’s Coronavirus guidance has not been updated to reflect that many sponsored workers may need to delay their start date as a result of COIVD-19. The current rules therefore still apply in this situation which allow a Tier 2 worker to delay their start date by up to 28 days from the date their visa was granted. This delay should also be reported on the SMS.

Where sponsored workers are working from home, and this is an exceptional arrangement, should this be reported on the SMS?

The current position is that any significant changes to a sponsored individual’s circumstances, including if the location they are working from changes, must be reported on the SMS within 10 working days. With the country now in lockdown, many sponsored individuals will now be working remotely, which should ordinarily be reported on the SMS.

The Home Office have confirmed in their Coronavirus guidance that ‘you do not have to notify us if you’re sponsoring employees who are working from home due to coronavirus.’ All other changes in working arrangements should however continue to be reported.

How can I comply with right to work checks?

As of 30 March 2020, the Home office have confirmed that right to work checks can be carried out remotely via video call during the COVID-19 pandemic. The procedure for conducting the right to work checks has been laid out by the Home Office:

  • Employers should ask the applicant to submit a scanned copy or photo of their original documents via email or using a mobile app.
  • Employers must then arrange a video call with the applicant. On the call, applicants should be asked to hold up the original documents to the camera for the employer to check them against the scanned copy or photo.
  • Employers are advised to record the date the check was made and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

Should the applicant hold a Biometric Residence Permit (BRP) or have status under the EU Settlement Scheme, the employer should use the online right to work check whilst on the call, providing they have permission from the applicant.

Once the measures in place for COVID-19 cease, employers will be asked to carry out retrospective checks on existing employees who either started work during the temporary measures or required a follow-up right to work check during the measures. Any of the retrospective checks should be marked as “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”.

Retrospective checks must be carried out within 8 weeks of the COVID-19 measures cessation, and immediate action must be taken if employers discover that an employee does not have permission to be in the UK.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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