The Home Office last issued an update on this matter on 20th April 2020.
The guidance confirms that an employer that is sponsoring an employee with a pending Tier 2 or Tier 5 visa application can allow their employees to commence work before receiving the decision if the following criteria is met:
- A Certificate of Sponsorship (CoS) has been assigned;
- The sponsored employee has submitted their application before the expiry of their current visa; and
- The job role they are being employed is the same as stated on their CoS.
Even though sponsor reporting duties have been relaxed on using the Sponsor Management System, Sponsors must ensure they are keeping records and maintaining all relevant information regarding their employees.
In the unfortunate event that the Home Office do refuse the employee’s visa application, their employment must be terminated immediately.
If an employer has issued a Certificate of Sponsorship to an employee overseas that has not yet made a Tier 2 application, the Home Office guidance provides that can still apply for the visa even though the start date stated on the CoS may have changed due to the inability to travel as a result of the coronavirus. It does not definitively state they will accept such cases as they will consider this on a case by case basis.
The Home Office also appreciate that some businesses may need to reduce the salary of their employees because they’ve temporarily ceased trading. Usually, salary reductions need to be reported on the Sponsor Management System 10 working days prior to the reduction taking place and cannot fall below the minimum salary threshold, otherwise they cannot be sponsored. Unless the employee’s salary reduction is justified. However, the Home Office have announced in this guidance that they are allowing employers to temporarily reduce the pay of sponsored employees to 80% or £2,500 per month, whichever is lower. This exception is thereby in line with the HMRC’s Coronavirus Job Retention Scheme that allows businesses to claim to cover wages for employees on temporary leave due to coronavirus. As these funds are paid to the employer, the scheme will not constitute recourse to public funds. Therefore, the employee will not be in breach of their immigration conditions from being furloughed. The guidance also clearly states that employee’s salaries must be returned to normal once the furlough period has ended. Any reductions in salary after this period must be reported as normal.
Due to the relaxation of Sponsor duties, employers will not need to report if an employee is working from home due to coronavirus. However, if there any other changes in working arrangements, these must be reported as usual.
If a Tier 2 sponsored employee has been furloughed, they are still able to carry out supplementary employment for no more than 20 hours per week as long as the job is:
- Included on the Shortage of Occupation List in Appendix K of the Immigration Rules; or
- In the same line of employment and professional level as the work assigned on the CoS.
The supplementary employment must also be outside of the normal working hours assigned on the CoS.
If you have any queries relating to furloughing your employees or your duties as a Sponsor, please fill out the enquiry form on the ‘Contact Us’ tab.