In light of the Covid-19 pandemic, the Home Office has now released further guidance for sponsors of Tier 2 and Tier 4 migrants. This guidance is to outline various concessions that have now been put into place. For our clients’ ease of reference, we have summarised the latest information, below:
Absences from work or study
The Home Office has reiterated that they will not take any action against sponsors who continue to sponsor Tier 2 employees or Tier 4 students despite absences due to coronavirus. As Breytenbachs has reported previously, the Home Office has waived the usual requirement for Tier 2 sponsors to withdraw sponsorship of any Tier 2 employee who is absent from work without pay for more than four weeks in a year.
The same applies to Tier 4 students who are unable to attend for more than 60 days. Provided the absences are due to the coronavirus. Whether this is due to the migrant being unwell, needing to isolate, or being unable to travel due to travel restrictions. In these circumstances, the sponsor can continue sponsorship uninterrupted and without making any report to the Home Office. The Home Office has not yet confirmed when these special provisions will come to an end.
For Tier 2 sponsors, the Home Office has further confirmed that where a sponsored employee is working from home due to coronavirus, no report needs to be made to the Home Office. Other changes to working arrangements must still be reported as usual (unless the changes fall within one of the Home Office’s other concessions, such as the above concession regarding staff absences due to the virus).
Validity of CoS and CAS
The Home Office has also confirmed that, where a sponsor has issued a Certificate of Sponsorship (CoS) or a Confirmation of Acceptance of Studies (CAS) and the sponsored employee/student has not yet applied for a visa, they recognise that the start date for the work/studies in question may have changed. The Home Office has confirmed that they will not automatically refuse such cases. It should be noted here that the Home Office has not confirmed that such cases will be accepted, only that they will not automatically be approved, so this concession should be approached with a degree of caution. The Home Office provides an example of a CoS or CAS potentially being accepted when it would usually have become invalid because the employee/student was unable to travel as a result of the virus. They have, however, also clarified that this will be considered on a case by case basis, so we must assume that solid evidence to demonstrate that the CoS/CAS only became invalid as a direct result of the restrictions and issues caused by coronavirus.
Reductions in salary of sponsored employees
The Home Office has confirmed that, where a sponsor cannot pay the salaries of their sponsored Tier 2 employees, due to a temporary reduction or cessation in trading, sponsors are permitted to reduce the pay of their sponsored employees to 80% of their salary, or £2,500 per month. Whichever is the lower figure. Reductions of this nature would have to form part of a company-wide policy to avoid redundancies, and all workers, migrant or otherwise, must be treated the same. It is important to note that the reductions must be temporary in nature and, once ended, the sponsored employee’s pay must return to the level paid prior to the reduction (or higher) once the arrangements have come to an end.
Sponsoring a student who is distance learning
The Home Office has further confirmed that Tier 4 sponsors are permitted to continue to sponsor existing Tier 4 students who are continuing their studies through distance learning. This rule applies whether the migrant is inside the UK or overseas. This also permits sponsors to continue sponsorship for new students who have been issued with a Tier 4 visa, but are distance learning because they have been unable to travel to the UK due to coronavirus. Sponsors do not need to report to the Home Office, where students have moved to distance learning as a result of the virus. At present, these concessions are due to remain in place until 31/05/2020, though it is possible that this date could be amended, depending on how the pandemic progresses.
The Home Office has also noted that new international students who have not yet applied for a visa, but wish to commence a course via distance learning, do not require sponsorship under Tier 4 as they do not need to travel to the UK.
It is important to note that sponsors must still report any student who has permanently withdrawn from their studies, or who have deferred their studies for reasons unrelated to coronavirus.
Sponsoring an employee who is waiting for their Tier 2 or Tier 5 visa application to be decided
The Home Office has confirmed that sponsors of Tier 2 and Tier 5 migrants may allow employees to commence work before their application has been decided if the following criteria are met:
- a CoS has been duly and correctly assigned to the migrant; and
- the migrant has submitted their application for the Tier 2 or the Tier 5 visa, and that the application was made in time (i.e., prior to the expiry of their previous visa); and
- the role that the migrant is employed in is in line with the role that was detailed on the CoS assigned to them.
It is important to note that if employment does commence under the above provisions and the employee’s Tier 2/Tier 5 visa application is ultimately refused or rejected as invalid then the sponsoring company must terminate their employment.
Sponsors should also note that reporting responsibilities for an employee commence from the date that the CoS is assigned, not from the date that the Tier 2/Tier 5 visa application is granted. As such, sponsors must ensure that they record and maintain all relevant information (including updating the CoS for any relevant changes, as usual) in line with the current Home Office guidance for sponsors.
Whilst the above provisions are very encouraging it is important to note that the information provided thus far does not provide much specific detail. As such, it is possible that the Home Office may release further information shortly, which limits the scope of the concession the Home Office has made. We would recommend that you contact your advisor at BIC if you wish to take advantage of the above provisions so that we can discuss them with you further and ensure that an appropriate and cautious approach is pursued.
Sponsoring a student who is waiting for their Tier 4 application to be decided
As with the above-mentioned provisions Tier 2 and Tier 5 migrants whose applications have been duly submitted, the Home Office has confirmed that Tier 4 sponsors may allow students to start their studies before their visa application has been decided, where the following requirements are met:
- the educational body in question must be registered as a Tier 4 sponsor (not including Tier 4 Legacy Sponsors); and
- the student has been assigned with a CAS; and
- the student has submitted their application for the Tier 4 visa, and that the application was made in time (i.e. prior to the expiry of their previous visa); and
- the course that they start is the same one listed on the CAS; and
- if a valid Academic Technology Approval Scheme (ATAS) certificate is required, then the student must have this document.
It is important to note that if the migrant does commence studies under the above provisions and their Tier 4 visa application is ultimately refused, or rejected as invalid then the sponsor must terminate their studies.
Sponsors should also note that their reporting duties must still be met and that these duties commence from the point that the CAS is issued and not from the date that the Tier 4 visa application is approved.
Please speak to your Breytenbachs consultant for more advice.