Wed, 22 Apr 2020
Both in parliament and written guidance, the government has been clear that no-one will have a negative outcome through the immigration system due to a circumstance that was beyond their control. This has led to temporary concessions in a number of areas relating to migrant workers and students. The following is a summary of some of the key points.
Absence due to COVID-19
Guidance updated on 20 April 2020 makes clear that enforcement action will not be taken against sponsors who continue to sponsor students or employees despite absences due to coronavirus. There is no need for a sponsor to report student or employee absences related to coronavirus, including absence due to illness, a need to isolate or inability to travel due to travel restrictions. There is currently no need to withdraw sponsorship if, because of coronavirus, a student is unable to attend for more than 60 days, or an employee is absent from work without pay for more than 4 weeks, albeit records of the same must be maintained by the sponsor.
Furlough for Migrant Workers
The government’s furlough programme, the Coronavirus Job Retention Scheme, went live for registrations on 20 April 2020. Under the scheme, the state will pay 80% of wage costs (up to £2,500 per month) for staff who are kept in employment rather than made redundant at a time when the operations of many businesses have been severely affected by COVID-19. The scheme is a temporary one, currently lasting for 4 months, starting from 1 March 2020, but the government indicates it may be extended if necessary.
The government has confirmed that the scheme can apply to foreign migrant workers. Importantly, grants under the scheme are not counted as ‘access to public funds’ and employees on all categories of visa are eligible. It is important to note than when on furlough, an employee cannot undertake work for, or on behalf of, the organisation or any linked or associated organisation. This includes providing services of generating revenue. Employees on the payroll on or before 19 March 2020 are eligible.
Further guidance is necessary on a number of questions, such as the effect of reduction in pay through furlough on minimum salary thresholds in the Immigration Rules. It is to be hoped that the Home Office exercise flexibility in assessing sponsor and employee compliance during these difficult times. Case-by-case advice should be obtained whilst clear guidance is awaited.
Students
Given the limitations on travel and public gatherings at present, Tier 4 students in the UK and those who have chosen to return overseas but wish to continue their studies will be permitted to undertake distance learning. This is a clear concession as such courses are normally unavailable to Tier 4 students.
New international students who have been issued a Tier 4 visa but who have been unable to travel to the UK are permitted to undertake distance learning and sponsorship does not need to be withdrawn. New international students who have not yet applied for a visa but wish to commence a course by distance learning do not need to travel to the UK to do so and therefore do not require sponsorship under Tier 4.
Students whose leave expires between 24 January 2020 and 31 May 2020, who would otherwise be unable to extend in-country, will be able to apply for further leave within the UK, as an exception brought about by COVID-19. This includes students studying at providers who would otherwise be required to apply from their home country for further leave, such as students at non-higher education providers with a track record of compliance. However, all other requirements of Tier 4, such as academic progression and maintenance, must be met as normal for a migrant to qualify for this exception.
This means students unable to complete their course of study within the current period of leave due to COVID-19, will be able to apply in-country to complete that course. Students needing to repeat a year, retake a module, or resit an exam, are exempt from demonstrating academic progression as would normally be the case for those applying in the UK. Further, students who otherwise need more time to complete a course as a result of COVID-19 will be exempt from demonstrating academic progression, such as where studies are suspended during social distancing measures.
Students applying to study a new course can commence study at the institution from the date of application, subject to obtaining a valid ATAS certificate before they commence studies, if one is required for their course. The academic institution must end sponsorship and teaching if the Home Office ultimately refuses the application.
Other exceptional arrangements have been put in place in relation to police registration, working hours and volunteering. In addition, the guidance states that discretion may be applied by the Home Office in future where any period of leave that would cause someone to exceed the limit will do so as a result of COVID-19, albeit the maximum length of time a student will be granted will remain the same in the immigration rules.
Another concession is that those present on short-term routes such as visits and short-term study will be allowed to switch into Tier 4 on an exceptional basis. Other normal requirements must still be met, such as maintenance. This will be allowed until 31 May 2020; at which time the concession will be reviewed. Extending short-term studies remains impossible, but short extensions will be granted to 31 May if leave is to expire before then. Otherwise, for short-term students a longer grant of leave is possible only by an application for leave outside the Immigration Rules.
The above is only intended as a summary of key aspects. The government’s various pieces of guidance can be viewed in full at:
https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
None of the above amounts to bespoke legal advice and should not be relied upon as such.
