April 7, 2020

How to apply for a Tier 2 sponsor licence

For all the bold talk of Australian-style points based systems, the government’s recent policy statement confirmed what had been known for some time: the post January 2021 immigration system will be centred around the well worn Tier 2 sponsorship route.

The existing Tier 2 set-up will be given a makeover, but there is no getting away from the fact that it is much more restrictive than the free movement on offer to EU citizens today. It is a sponsorship system: a foreign worker cannot simply decide to apply for a Tier 2 visa in order to come and work in the UK. They need a job offer from a UK-based employer.

This organisation must also hold a Tier 2 sponsor licence which allows them to sponsor workers from overseas.

Inevitably, then, more employers are going to need a Tier 2 sponsor licence if they want to maintain staffing levels — and they will need it fast if they are to be ready to employ EU nationals arriving from 2021. The government is alive to this, saying that

Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021.

With this in mind, if you are a legal representative who has thus far avoided sponsor licence applications like the plague but now need to get a handle on them, here is a short guide to the process.
What kind of sponsor licences are there?

There’s actually a plethora of possible sponsor licences that a non-educational organisation can apply for, reflecting the different types of sponsored work visas:

Tier 2 (General)
Tier 2 (Intra Company Transfer)
Tier 2 (Ministers of Religion)/ Tier 5 (Temporary Workers) Religious workers
Tier 2 (Sportsperson)
Tier 5 (Temporary Worker) Creative and Sporting
Tier 5 (Temporary Worker) Charity Workers
Tier 5 (Temporary Worker) Government Authorised Exchange
Tier 5 (Temporary Worker) International Agreement
Tier 5 (Temporary Worker) Seasonal Workers

Some of these licences can be applied for in conjunction with each other, using the same form and a similar bundle of supporting documents (for example, a Tier 2 General and Tier 2 Intra Company Transfer licence). Others, such as the sporting categories, have their own separate application process with bespoke criteria.

This note will focus on the process for applying for a Tier 2 (General) licence. It is the most common application you are likely to see. Tier 2 (General) is the visa route which skilled workers from beyond the EU currently have to rely on to find work in the UK, and which EU nationals will have to use as well once free movement ends, as we expect, on 31 December 2020.
OK, where do I start?

With the Holy Bible of sponsorship, the Home Office’s Tiers 2 and 5: guidance for sponsors. Sections 1 to 10 of the guidance set out the process for applying for a sponsor licence.

These sections state that a sponsor has to fulfil certain eligibility and suitability criteria to get their licence.
Eligibility criteria

The eligibility criteria are pretty straightforward. The would-be sponsor has to submit evidence to show that it is a genuine employer with a lawful trading presence in the UK. I’ll give some examples in the next section.
Suitability criteria

The suitability criteria is a much broader assessment. The Home Office will look at whether the organisation is “honest, dependable and reliable”, and capable of meeting the responsibilities that it expects from sponsors. The department will check the following (adapted from paragraph 7.4 of the guidance):

That the sponsor has the human resource and recruitment systems in place to meet, or continue to meet their sponsor duties — the Home Office will judge this by either visiting the sponsor before or after the licence is granted
That the Home Office are able to visit and conduct checks to ensure that the sponsor duties are being complied with on an immediate, unannounced basis; this includes checks at any physical addresses where the sponsored employees would carry out their employment duties
That the sponsor can offer a genuine vacancy which meets the criteria of the category the sponsor is applying to be licensed for
If any of the key personnel within the business have an unspent criminal convictions for a relevant offence
Any evidence of previous non-compliance by the sponsor

This is vitally important, as sponsorship is a two-way street. In the paternalistic eyes of the Home Office, a sponsor is benefitting from employing migrant workers, and so must shoulder some of the burden in ensuring the system is not abused. The Home Office wants to be reassured that sponsors can live up to the “significant trust” that the department places in them.

It is important that your client understands this. Failure to do so has serious consequences (more on this below).
What documents do I need to send in?
To meet the general eligibility criteria

The answer lies within Appendix A. That is, if you are able to decipher it. In a closely fought contest for the most confusing and badly written Home Office immigration document, Appendix A to the sponsor guidance wins by a nose.

To be fair, the Home Office has set itself a tough task. Instead of stepping back and assessing a sponsor’s credentials in the round, it expects employers of all different shapes and sizes to provide documents from a defined list to demonstrate their eligibility. Sponsors will need to accumulate at least four pieces of evidence from the Appendix A list to support their application.

Four pieces of evidence doesn’t sound like much, but when this requires businesses to dig out VAT and employer’s liability insurance certificates, gathering evidence can take a surprisingly long time. So it’s wise to have the documents ready before you tackle the submit the online application (see below)

Appendix A is split into four tables. It is easiest to go through them in turn to see if you can find the documents which fit your client.

For instance, table 1 confirms that a public authority or a company listed on the London Stock Exchange does not have to submit documents other than those specific to the licence they are applying for. Table 2 covers starts-ups (organisations that have been trading for less than 18 months), as well as franchises and charities. Table 3 lists the specific evidence that needs to be sent for a particular tier.

Table 4 then lists all the other possible documents you could provide, one of which must be the latest set of audited accounts if the organisation is legally obliged to submit them.

In my experience, the average private limited company tends to find the following easiest to find, although this is very much case by case:

Evidence that the sponsor has coverage for employer’s liability insurance up to £5 million
Certificate of VAT registration
Evidence of registration as an employer with HM Revenue and Custom
Recent bank statement or a letter from the bank setting out dealings with the organisation
Proof of ownership or lease of the business premises

Until very recently, documents for a sponsor licence application had to be either originals or certified copies. With the vast majority of us now home working, the Home Office has relaxed this rule. According to correspondence shared with the Immigration Law Practitioners Association (members-only link), documents in support of a sponsor licence application can now be emailed to the Home Office as pdf files. Let’s hope that this long overdue change to the application process is made permanent.
Specific evidence required for Tier 2 (General)

Most of the visa-specific documents are covered in table 3 of Appendix A. But for reasons which remain mysterious, the specific documents required for Tier 2 (General) are listed on page 6 of Appendix A instead.

Alongside some basic information about the organisation, the role they want to fill and the candidate they have in mind, the organisation must also tell the Home Office why they are applying for a licence. This usually involves providing evidence of the skill shortage they need to fill.

Although this is not explicitly spelt out, if the role is not on the Shortage Occupation List or has a salary above £159,600, the most straightforward way to demonstrate that the skill shortage is by advertising the role in line with the Resident Labour Market Test. This evidence can be re-used as part of an individual Tier 2 (General) visa application.
Key personnel for the licence

The Home Office also requires the organisation to nominate certain individuals to take on roles in respect of the sponsor licence. The people nominated must be primarily based in the UK. The main roles are:

authorising officer – perhaps the most important of all the roles, this should be given to someone senior. Ideally it should be someone who has some involvement with recruitment and/or HR as they will be ultimately responsible for the licence and to ensure that the sponsor licence duties are met.
key contact – this person is the main point of contact with the Home Office. A legal representative can undertake this role, and it is recommended you do so, as this will enable you to chase the application on your client’s behalf if needs be.
level 1 user – responsible for all day-to-day management of the licence via access to an online portal, the sponsorship management system (SMS). At the application stage this has to be an employee but once the licence is secured, others, including representatives, can be set up as level 1 users, or level 2 users who are able to undertake certain limited tasks on the SMS.

It is important to carefully consider whether anyone nominated has skeletons in the closet, particularly any criminal conduct or previous adverse involvement with the Home Office. Applications for sponsor licences can be refused due to the character and past behaviour of the key personnel. The Home Office can and will run its own checks on nominees.
What about the suitability criteria?

This is more complex I am afraid. Essentially the Home Office will want to be sure that the organisation and the key personnel are bona fide.

Specifically, they will want to know that the organisation has the HR or recruitment systems in place to meet the myriad sponsorship duties that an employer effectively signs up to when they become a sponsor.
Sponsorship duties

Sponsorship duties include reporting certain information about sponsored workers via the sponsorship management system. The report must be made within ten working days of the event occurring. Reportable events include a delay in a start date or change in work location for a Tier 2 worker.

They also include keeping detailed records on sponsored workers, such as contracts of employment, payment details and most importantly evidence where applicable of running the Resident Labour Market Test before hiring the person.

The duties are certainly burdensome, and in some cases entirely pointless. One particularly irksome duty is to report when a worker has changed their immigration category — for instance, when they have been granted indefinite leave to remain after five years in Tier 2 (General). It is maddening to be required to report something the Home Office already knows.

But a sponsor will need to be prepped on what the duties are, what they entail and the consequences if they fail to adhere to them.
Compliance visits

In particular, sponsors should be warned that the Home Office can visit them as part of the sponsor licence application process to check their systems are robust enough. This is the principal method by which the Home Office can assess the suitability criteria.

These compliance visits were pretty common a few years ago, particularly for start-ups, but have become rarer of late. They will usually occur if the application is deemed high risk in some way.

Even if they avoid a visit during the application process, a sponsor can be inspected by the Home Office at any point while they remain a sponsor licence holder.

During a visit the inspector will want to check the sponsor’s HR systems and speak to the authorising officer. They can also request to interview Tier 2 employees to ensure that the vacancy they have filled is a genuine one.

If the Home Office finds evidence that the employer is not meeting their duties, their licence can be suspended or even revoked — meaning their sponsored workers will have their visas curtailed. In 2019, almost 600 Tier 2 and Tier 5 licences were suspended, and over 400 revoked.

This puts the worker at risk of losing their job and their right to remain in the UK, not to mention operational and reputational damage for the employer.

Spending some time with your client during the application process, checking their policies and systems to see if they can meet the standards that are expected of them, is a useful exercise. You can then spot and iron out any deficiencies which could come back to haunt them in the future.
How do I actually submit the application?

Not on a nice user-friendly Access UK form, unfortunately. You will instead have to grapple with an online application form specific to sponsor licensing, which crashes regularly and is badly in need of an update.

The form is pretty straightforward, if a little awkward to use. You will need to choose which categories you want the license to cover (as shown below).

It then asks for the key personnel on the licence and which supporting documents you are going to provide to meet the eligibility criteria, as discussed above.

A legal representative can help a sponsor to complete the form but the Home Office guidance is clear that it must ultimately be submitted by the sponsor. If you can’t be with the client when they submit it, you can prepare the form and pass on the login details for them to press submit themselves.

Once the online form is submitted, a fee is paid depending on the size of the organisation: £536 for a small company or a charity and £1,476 for a medium or large company.

Then a submission sheet is generated which previously had to be printed off and signed by the authorising officer. Due to the COVID-19 lockdown, the Home Office will now accept a pdf and a digital signature.

The normal rule is that you have five working days from the point of submission to send your bundle of supporting evidence to the Home Office. This has also been relaxed in light of current circumstances.
When do I get a decision?

Decisions take around four to six weeks. The sponsor will be emailed with the result of the application.

If successful they will be granted a licence valid for four years from the date of decision. This will usually be an A-rated licence which means they will be granted access to the sponsor management system via login details for the nominated user. The organisation will then have the ability to start sponsoring workers.

Bear in mind that there are no second chances. If the application is refused, there is no right of appeal against this decision and a six month cooling off period will kick in preventing the sponsor from making another application during this time period.
Seems like a pain. Will things get easier in future?

All this is a moveable feast. The immigration white paper from 2018, and numerous policy statements since, have indicated that the government wants to overhaul the sponsorship system, reduce the duties on sponsors and introduce new sponsorship structures which will necessitate changes to the sponsor licence application process.

Improvements are long overdue but with the amount of work the Home Office currently has on its plate, this is likely to be on the back burner for the next year or two at least.

April 6, 2020

Immigration and nationality fees unchanged for 2020/21

The updated list of fees for immigration and nationality applications that apply from 6 April 2020 shows that all remain unchanged from last year.

The amount the Home Office charges to process visa, settlement and citizenship applications had been rising steadily above inflation for many years up to 2018. For the past two years these fees have mostly been frozen — although the Immigration Health Surcharge, a separate tax on immigration, has increased sharply.

At the end of 2018, the health surcharge was £200 a year. A spouse applying for leave to remain in the UK would have paid £1,033 in processing fees for leave valid for two and a half years, plus £500 in health surcharge. The health surcharged doubled at the start of 2019 and is set to rise to £624 a year in October. So by the end of 2020, even with the headline fee staying the same, the total cost of that spouse application will have jumped from £1,533 to £2,593 in just two years.

Money from the Immigration Health Surcharge is ringfenced for the NHS, but the Home Office makes a hefty profit on the processing fees as well. A migrant applying for indefinite leave to remain in the UK must pay £2,389. The cost to the Home Office of processing an ILR application is £243 — so the fee is set at ten times higher than the actual administrative cost. A Tier 2 work visa for someone working in a “shortage occupation”, where the UK is desperate for workers, has an administrative cost of £127 but is charged at up to £928.

Most outrageous of all is the application fee for registering a child as British. The fee in 2020/21 is still over £1,000, but the actual cost is £372. The High Court found last year that the Home Office had failed to assess the best interests of children in setting this fee, although it remains in place for the time being.
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It is not just individual migrants who are being squeezed for fees. Employers who recruit foreign workers from outside the EU face a charge of £1,000 per worker per year. A lower charge of £364 per worker per year is applicable to small businesses and universities and some exemptions apply. The charge only applies to new recruits, not existing ones, but is scheduled to kick in for new arrivals from the EU from the beginning of 2021.

The full list of old fees and new fees is below. We have omitted the usual column showing the change from last year because it is £0 in all cases.
1. Visas and applications made outside the UK
Fees category Current Fee New fee from 6 April 2020
Visit visa < 6 months £95 £95 Visit visa < 2 years 1 £361 £361 Visit visa < 5 years £655 £655 Visit visa <10 years £822 £822 Visiting academic – more than 6 months but no more than 12 months £190 £190 Private medical treatment visa – more than 6 months but not more than 11 months £190 £190 Short term student visa (up to 6 months) £97 £97 Short term student studying English language for more than 6 months but not more than 11 months £186 £186 Settlement £1,523 £1,523 Settlement – other dependant relative £3,250 £3,250 Settlement – refugee dependant relative £388 £388 Indefinite leave to enter the UK as the dependant of a member of the armed forces under Appendix Armed Forces to the Immigration Rules. £2,389 £2,389 Certificate of entitlement – (right of abode) £388 £388 Other visa £516 £516 Transit visa (direct airside transit) £35 £35 Transit visit visa (landside transit) £64 £64 Visa for the purpose of joining a ship or aircraft as a member of the crew of that ship or aircraft £64 £64 Transfer of Conditions (Vignette transfer) £154 £154 Representative of an overseas business £610 £610 Call out/ out of hours fee (per hour/part hour) £142 £142 Single-entry visa to replace a Biometric Residence Permit (BRP) £154 £154 Receiving, preparing and forwarding documents £141 £141 Electronic Visa Waiver £30 £30 Innovator2 £1021 £1021 Start-up2 £363 £363 Global Talent – initial application2 £152 £152 Approval letter in respect of an initial application for Global Talent £456 £456 Global Talent – subsequent application2 £608 £608 Global Talent – dependant £608 £608 2. Points based system – applications made outside the UK Fees category Current Fee New fee from 6 April 2020 Tier 1 (Entrepreneur) 2 £1,021 £1,021 Tier 1 (Investor) £1,623 £1,623 Tier 1 (Exceptional Talent) – dependants only £608 £608 Tier 1 (General) – dependant £1,021 £1,021 Tier 1 (Graduate Entrepreneur) – dependants only £363 £363 Tier 1 (Post-study Work) – dependant £604 £604 Tier 2 (General), (Intra-Company Transfer) – Long Term Staff, (Sportsperson) & (Minister of Religion), where a certificate of sponsorship has been issued for a period of three years or less 2 £610 £610 Tier 2 (Intra-Company Transfer) – Graduate Trainee 2 £482 £482 Tier 2 (General), (Intra-Company Transfer) – Long Term Staff, where a certificate of sponsorship has been issued for a period of more than three years 2 £1,220 £1,220 Tier 2 (General) shortage occupation where a certificate of sponsorship has been issued for a period of three years or less 2 £464 £464 Tier 2 (General) shortage occupation where a certificate of sponsorship has been issued for a period of more than three years 2 £928 £928 Tier 4 £348 £348 Tier 5 2 £244 £244 3. Optional premium services outside the UK Fees category Current Fee New fee from 6 April 2020 Priority visa service – settlement £573 £573 Priority visa service – non-settlement £220 £220 Super priority visa service £956 £956 User-pay visa application centre £55 £55 International Contact Centre – Email Service (per query) £5.48 £5.48 International Contact Centre – Telephone Helpline (per minute) £1.37 £1.37 4. Optional premium services in the UK Fees category Current Fee New fee from 6 April 2020 Super Priority service £800 £800 The provision of an immigration officer to deliver any premium service, to a Government Department, relating to entry into or transit through the United Kingdom £57.33 £57.33 The provision of an immigration officer to deliver any premium service, relating to entry into or transit through the United Kingdom £77.40 £77.40 Expedited processing – Priority service £500 £500 Premium status checks and advice (Administrative Officer) (per minute)3 £0.80 £0.80 Premium status checks, advice or training (Executive Officer) (inside office hours) (per minute) 3 £0.88 £0.88 Premium status checks, advice or training (Executive Officer) (outside office hours) (per minute) 3 £1.10 £1.10 Premium status checks, advice or training (Higher Executive Officer) (inside office hours) (per minute) 3 £0.97 £0.97 Premium status checks, advice or training (Higher Executive Officer) (outside office hours) (per minute) 3 £1.23 £1.23 On-Demand service (Mobile Biometric Enrolment) (per hour per representative of the contractor providing the service) (per minute) £650 £650 5. Discretionary services at the border Fees category Current Fee New fee from 6 April 2020 Fee Change Registered Traveller (Adult) Yearly Subscription £50 £50 £0 Registered Traveller (Child) Yearly Subscription £24 £24 £0 Registered Traveller Registration of New Documents £20 £20 £0 Fast Track – Heathrow terminals 2, 3 and 4 £5.20 £5.20 -£0 Fast Track – Other £3.00 £3.00 £0 6. Applications made in the UK Fees category Current Fee New fee from 6 April 2020 Indefinite leave to remain £2,389 £2,389 Leave to remain – Other £1,033 £1,033 Leave to enter for persons in the UK who are liable to immigration detention £1,033 £1,033 Visitor Extension main applicant & all dependants £993 £993 Transfer of Conditions (TOC) or Application for a document confirming identity and immigration or nationality status – limited leave to remain £161 £161 TOC or Application for a document confirming identity and immigration or nationality status – indefinite leave to remain £229 £229 Biometric residence card (issued under the EU Settlement Scheme) £56 £56 Biometric residence permit (BRP) / replacement BRP £56 £56 Processing an application which is subsequently rejected as invalid £25 £25 Processing of an application made under Appendix EU which is subsequently rejected as invalid – Adult £0 £0 Processing of an application made under Appendix EU which is subsequently rejected as invalid – Child £0 £0 Biometric enrolment £19.20 £19.20 Certificate of travel – adult £280 £280 Certificate of travel – child £141 £141 Convention travel document – adult £75 £75 Convention travel document – child £49 £49 Retired person of independent means £1,949 £1,949 Representative of an overseas business £704 £704 European residence document (registration certificate, document certifying permanent residence, residence card, accession resident card, derivative residence card, permanent residence card) £65 £65 Application for leave to remain where the application is made under Appendix EU – Adult £0 £0 Application for leave to remain where the application is made under Appendix EU – Child £0 £0 Innovator 2 £1,277 £1,277 Start-up 2 £493 £493 Global Talent – initial application2 £152 £152 Approval letter in respect of an initial application for Global Talent £456 £456 Global Talent – subsequent application2 £608 £608 Global Talent – dependant £608 £608 Naturalisation 4 £1,330 £1,330 Naturalisation British overseas territory citizens £1,000 £1,000 Nationality registration as a British citizen – adult 4 £1,206 £1,206 Nationality registration as a British citizen – child 5 £1,012 £1,012 The arrangement of a citizenship ceremony (including the administration of a citizenship oath and pledge at the ceremony). £80 £80 The administration of a citizenship oath, or oath and pledge where the oath, or oath and pledge, are not administered at a citizenship ceremony or by a justice of the peace. £5 £5 Nationality registration British overseas territory citizen, British overseas citizens, British Subjects, British protected persons – adult £901 £901 Nationality registration – British overseas territory citizen, British overseas citizens, British Subjects, British protected persons – child £810 £810 Renunciation of nationality £372 £372 Certificate of entitlement – (right of abode) £372 £372 Nationality review £372 £372 Status letter £250 £250 Non-acquisition letter £250 £250 Nationality correction to certificate £250 £250 Life in the UK test £50 £50 Nationality – supply of a certified copy of a notice, certificate, order or declaration £250 £250 Administrative review £80 £80 7. Points based system – applications made in the UK Fees category Current Fee New fee from 6 April 2020 Tier 1 (General) – dependant £1,878 £1,878 Tier 1 (Entrepreneur) 2 £1,277 £1,277 Tier 1 (Investor) £1,623 £1,623 Tier 1 (Graduate Entrepreneur) – dependants only £493 £493 Tier 1 (Exceptional Talent) – dependants only £608 £608 Tier 2 (General), (Intra-Company Transfer) – Long Term Staff, (Sportsperson) & (Minister of Religion), where a certificate of sponsorship has been issued for a period of three years or less 2 £704 £704 Tier 2 (Intra-Company Transfer) – Graduate Trainee 2 £482 £482 Tier 2 (General), (Intra-Company Transfer) – Long Term Staff, where a certificate of sponsorship has been issued for a period of more than three years 2 £1,408 £1,408 Tier 2 (General) shortage occupation where a certificate of sponsorship has been issued for a period of three years or less 2 £464 £464 Tier 2 (General) shortage occupation where a certificate of sponsorship has been issued for a period of more than three years 2 £928 £928 Tier 4 £475 £475 Tier 5 2 £244 £244 8. Points based system – sponsorship Fees category Current Fee New fee from 6 April 2020 Premium sponsor scheme – Tiers 2 & 5 (large sponsor) £25,000 £25,000 Premium sponsor scheme – Tiers 2 & 5 (small sponsor) £8,000 £8,000 Premium sponsor scheme – Tier 4 £8,000 £8,000 Premium Change of Circumstances £200 £200 Tier 2 large sponsor licence (may also include Tier 4 and/or Tier 5) £1,476 £1,476 Tier 2 small sponsor licence (may also include Tier 4 and/or Tier 5 ) £536 £536 Tier 4 sponsor licence £536 £536 Tier 5 sponsor licence £536 £536

April 1, 2020

Coronavirus and the UK immigration system

Measures taken to combat the spread of coronavirus and COVID-19 disease have changed almost every aspect of society both here in the UK and around the world. The immigration system is no exception. This post gathers together various updates on changes to immigration law and practice caused by coronavirus.

For now, in contrast with our normal practice, we’ll be keeping this post continually up to date rather than covering new coronavirus developments as separate blog posts that may become rapidly out of date. Use the page contents to navigate.

Visa extensions and other concessions – General policy

Particularly pressing is the situation for people who are in the UK on an expiring visa and unable to leave because of travel restrictions. Government guidance on this initially focused on Chinese citizens and residents of China stuck in the UK, as they were most affected at the time that guidance was first published, in mid-February 2020.

The guidance was updated on 24 March to cover other nationalities. It leaves many questions unanswered but the top line is as follows:

If you’re in the UK and your leave expires between 24 January 2020 and 31 May 2020

Your visa will be extended to 31 May 2020 if you cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

The guidance continues:

You must contact the Coronavirus Immigration Team (CIT) to update your records if your visa is expiring.

You should provide:

your full name (include any middle names)
date of birth (dd/mm/yyyy)
nationality
your previous visa reference number
why you can’t go back to your home country, for example if the border has closed

We’ll let you know when your request is received and when your visa has been extended.

This guidance overrides a previous version at the same webpage. The older version unilaterally conferred leave to remain until 31 March to Chinese citizens whose visas had or were due to expire between 24 January 2020 and 30 March 2020. It also allowed non-Chinese, non-EEA nationals in the UK who are normally resident in China to get an extension of leave on application to the coronavirus hotline, in a similar process to the one now in force for all nationalities.

The Immigration Law Practitioners Association says that “it is immediately apparent that the guidance is not adequate”. ILPA has however been provided with an additional Coronavirus (COVID-19) factsheet: visa holders and short-term residents in the UK. As of 25 March, this was not publicly available but can be downloaded here (pdf).

The fact sheet is not a great advance on the public guidance, but adds that “individuals will be advised that UKVI have noted their details; they will not be subject to enforcement action; and this period will not be held against them in future applications”.

The legal basis for all this is unclear, to put it mildly.
A note of caution

Please take a cautious approach to the new coronavirus extension policy. If your client has time to give it a try or their leave has already expired, there’s probably no downside, but if your client’s leave is about to expire it is important to note that providing the details requested by the Home Office does not extend leave under section 3C of the Immigration Act 1971 according to the information we currently have. If your client’s reasons are not accepted, they will become an overstayer. If there is a way to protect 3C leave, and that will be a potentially complex matter to decide, that may be the best route.

Also note that this route isn’t likely to help people who need to make an application for longer-term leave if they do not already meet the requirements. For example, Tier 4 to Tier 2 where you are waiting for a sponsor licence to be approved may not benefit from this route as there is no Certificate of Sponsorship, so the requirements cannot be met. Proceed with caution.

There does not appear to be any concession for people in the reverse position: those with a 30-day visa giving permission to enter the UK but who are unable to do so before it expires due to travel restrictions.

Switching

The guidance also includes information on switching visas:

If you’re applying to stay in the UK long-term

During these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the same visa requirements and pay the UK application fee.

This includes those whose leave has already been automatically extended to 31 March 2020.

You can apply online. The terms of your leave will remain the same until your application is decided.

“Long term” here does not mean indefinite leave to remain. An accompanying press release gives the example of switching from “Tier 4 (student) to Tier 2 (General Worker)”.

NHS workers

As we’ve established, most people who need their leave extended must contact the coronavirus helpline to ask for the extension. NHS workers and their families, however, are to get a one-year extension automatically.

The Home Office announced on 31 March that around 2,8000 doctors, nurses and paramedics with leave due to expire by 1 October would get a free one-year extension. Family members are included and there are no fees involved.

The department has also “lifted the restriction on the amount of hours student nurses and doctors can work in the NHS”.

The legal basis for this is particularly unclear.

Sponsor duties

There is now brief Home Office coronavirus guidance for organisations which sponsor overseas workers or students under Tiers 2, 4 and 5 of the Points Based System. It promises:

We will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus.

Sponsors are not currently required to report any absences from students or employees sponsored under Tier 2, Tier 4, or Tier 5, where those absences have been the result of the consequences of the coronavirus outbreak.

Sponsors will also not be required to withdraw sponsorship for affected students who have been unable to attend for more than 60 days or for employees who have exceeded four weeks of absence without pay.

Tier 4 student can now do distance learning, although if they quit the course altogether this must be reported as usual.

Similarly, Tier 2 and 5 sponsors do not need update the Home Office if workers are now working from home provided that the switch to home working is because of the pandemic.

There is coronavirus advice for Tier 2 and Tier 4 sponsors on the Carter Thomas website. Lewis Silkin has some advice for Tier 2 sponsors, as well as a page on the immigration implications of the government’s crisis employment policies.
Special hotline

As mentioned above, the Home Office has set up a coronavirus helpline:

Email: CIH@homeoffice.gov.uk. Your email must be in English.

We’ll reply to your email within 5 working days.

You can also call the Coronavirus Immigration Help Centre. If you’ve emailed the help centre already, please do not contact them by phone.

Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)

This seems to be intended for queries specifically about the concessions discussed above. The Home Office emphasises that “if your query doesn’t relate to immigration provisions associated with coronavirus (COVID-19) please contact the general immigration helpline on 0300 123 2241″.

UK visa application centres Within the UK

All visa application centres within the UK are closed as of 27 March.

Sopra Steria, which runs the network of Visa and Citizenship Application Centres on behalf of the Home Office, has the following message on its website:

The UKVCAS service is currently suspended

The worldwide response to COVID-19 continues to affect the UK’s Visa and Immigration Service. As a result, the UK Visa and Citizenship Application Services (UKVCAS), led by Sopra Steria on behalf of UK Visas and Immigration (UKVI), has suspended all services to help protect the health and wellbeing of our customers and staff.

This will remain under review with UKVI as the situation evolves.

Those with appointments will have them automatically rescheduled or get a refund.

Service and Support Centres are also closed.

Anyone with an expiring visa is referred to the visa extension guidance outlined above. To reiterate: someone stuck in the UK on an expiring visa should contact the coronavirus helpline to get an extension.
Outside the UK (UPDATED 1 APRIL)

A second Home Office factsheet of 24 March, Coronavirus (COVID-19) factsheet: visa customers outside of the UK, can be downloaded here (pdf). It notes that “many of the UK’s Visa Application Centres (VACs) are currently closed and we anticipate more closing”.

That includes all the visa application centres run by VFS Global on behalf of the Home Office. As of 1 April, the VFS website reports that “UK has stopped accepting visa applications globally”.

All other visa centres overseas are run by TLScontact. It does not appear to have a centralised list of closures, but applicants can check the situation in their country through the TLScontact website.

According to the Home Office fact sheet, those with appointments at a closed visa centre should be contacted. Those awaiting a decision and who want their passport back should contact the company which runs the visa centre in question (either TLScontact or VFS Global). But “if applicants are concerned about their passport, they can contact the Coronavirus Immigration Team at CIH@homeoffice.gov.uk”.
Immigration tribunal hearings

As of 1pm on 26 March, there is a general ban on leaving the house without reasonable excuse. The coronavirus lockdown regulations (for England) do include an exemption “to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”. But the nation’s courts and tribunals are rapidly organising video and phone hearings so that lawyers and appellants need no longer turn up in person.

Some tribunal hearing centres will remain open during the pandemic, but only for “hearings that cannot be heard by video or telephone and which cannot be delayed”. Most tribunal action for the foreseeable future will be conducted remotely.
Remote hearings: overview

The Senior President of Tribunals issued an emergency practice direction on 19 March. It covers all chambers of the Upper and First-tier Tribunals (i.e. including immigration).

The practice direction says that:

Where it is reasonably practicable and in accordance with the overriding objective to hear the case remotely (that is in any way that is not face-to-face, but which complies with the definition of ‘hearing’ in the relevant Chamber’s procedure rules), it should be heard remotely.

Judges will make allowances for the pandemic when considering applications for extensions of time and postponement of hearings.

The practice direction also allows for:

Decisions to be made on the papers without a hearing where possible
Chamber Presidents to “triage” cases
Hearings to go ahead in a party’s absence, so long as this can be done in accordance with the overriding objective to deal with cases fairly and justly

This has been supplemented by more detailed arrangements for each of the First-tier and Upper immigration tribunals, outlined below.
Remote hearings: First-tier Tribunal (UPDATED 1 April)

On 21 March, President of the First-tier Tribunal (Immigration & Asylum Chamber) Michael Clements wrote to the Immigration Law Practitioners Association to say that hearings are to go remote:

From Wednesday, 25th March onwards, there will be no face to face hearings listed in any centre. Applications for bail and emergency work will continue to be given priority but, save in exceptional circumstance, applications and hearings will be conducted remotely.

Notices circulated by individual tribunal hearing centres state that hearings scheduled from 25 March onward have been converted to case management hearings instead. The version of the notice issued by the resident judge at Newport on 24 March states:

In view of the rapidly changing circumstances created by the Covid-19 pandemic, the President of the First-tier Tribunal (IAC) has directed that all appeals will proceed by way of a Case Management Hearing (CMR) via telephone or Skype which will take place on a date to be notified in a time slot to be allocated. All current scheduled hearings are vacated.

Details of the remote process to be followed may vary between tribunal hearing centres. Immigration barristers from 21 chambers have written to President Clements to complain about a “lack of clarity as to the applicable Practice Directions” and asking for “a definitive Practice Direction from you which applies to all hearing centres”. They also describe the overall arrangements for remote hearings as “unworkable”.

In a response dated 1 April, the President says as follows:

You refer to the Notice and Directions that has been sent out to all parties in all listed cases that have been adjourned. The Directions require bundles and skeleton arguments to be filed electronically so that meaningful triaging and active case management can take place, essential steps if we are to maintain access to justice and the proper functioning of the tribunal. It is intended that the same process will apply at each hearing centre… Where a hearing is necessary, it will proceed by remote means, in accordance with what the [Lord Chief Justice] and the [Senior President of Tribunals] have described as the “default position”.

On the issues with remote hearing, President Clements comments:

HMCTS is working hard to provide the environment in which we can meet this challenge but you are right to observe that much more needs to be done. This is why I took the decision to vacate lists, take stock, establish a sound footing for case management to meet the impact of the pandemic, triage cases where we can and then list those cases to be decided by means of a remote hearing with those not suitable being adjourned to a time when face to face hearings again become possible.

The President has also issued Practice Statement Note No 1 2020: Arrangements during the COVID-19 pandemic. It commands a shift to lodging appeals online:

(1) With the exception of HR/EEA appeals, all appeals to the First-tier Tribunal must be commenced using the online procedure unless it is not possible to do so.

(2) If an appellant contends that it is not possible to commence an appeal by using the online procedure, the appellant may commence an appeal without using the online procedure but must at the same time state why it is not possible to do so.

(3) The Tribunal shall consider any reasons provided in support of appeals commenced in accordance with paragraph [2] above and may give such directions as it thinks fit, having regard to the overriding objective, including directing that the appeal must continue using the online procedure, be stayed, be determined by a means to be directed having regard to those reasons or be determined without a hearing.

Remote hearings: Upper Tribunal

The Operations Manager at the Upper Tribunal (Immigration & Asylum Chamber) circulated the following note by email on 20 March:

A decision has been taken to cancel all listed UTIAC cases, these now include JR, Age Assessments, appeals and regional cases with the odd exception due to alternative arrangements having already been made. All parties in all cases will be formally notified.

This was followed on 23 March by a presidential guidance note on Arrangements during the COVID-19 pandemic. This puts flesh on the bones of the emergency practice direction so far as the Immigration and Asylum Chamber of the Upper Tribunal is concerned. The bottom line is:

If a hearing is necessary, the “default” option during the pandemic is, therefore, that the hearing should be conducted remotely.

The guidance note outlines processes for:

Making certain appeal decisions without a hearing
Conducting remote hearings
Arranging interpreters
Filing urgent judicial reviews (ie those “using or including form T 483 or T 484”). More on this issue in a separate note (pdf).

The note concludes: “it needs to be appreciated that unfolding events during the pandemic may affect the extent to which UTIAC can operate by reference to this Guidance. In any event, the need to adopt new ways of working may well lead to challenges on the ground, which will need to be approached sympathetically by parties and the UTIAC alike”.
SIAC (NEW 1 April)

A notice from the Chairman of the Special Immigration Appeals Commission, Mrs Justice Elizabeth Laing, says that there are no court staff in the Field House office but emails are being answered. It adds that “appellants must continue to comply with the relevant time limits for lodging an appeal. Appeals must be lodged by email until further notice”.
Other resources

The immigration team at Lamb Building has put together a briefing on the coronavirus situation covering both the immigration tribunals and the higher courts. If you have a question not covered in this section, it may be answered there.

All coronavirus guidance documents, practice directions etc from the judiciary are on the Judicial Office website.
Asylum
Interviews

The Home Office has decided to “pause face to face substantive asylum interviews for now”, according to correspondence from the Asylum Operations team. All interviews scheduled from 19 March onward are cancelled.

Some initial screening interviews are also being cancelled, according to Right to Remain, although the Law Centre NI reports that they are continuing in Northern Ireland.
Further submissions

As of 18 March, asylum seekers who wish to put in further submissions with a view to have their case considered as a fresh claim no longer need to turn up in person. The following email is from the Assistant Director of Further Submissions and Further Leave Casework at UK Visa and Immigration:

With effect from Wednesday 18th March, until further notice the Home Office has temporarily suspended the requirement for Further Submissions to be lodged in person in Liverpool. The Home Office is also cancelling all existing appointments. Applicants wishing to lodge a Further Submission in support of a fresh claim for asylum will be able to submit this via e-mail to a dedicated in-box or through the pre-existing postal route. The in-box for Further Submissions to be e-mailed to is : CSUEC@homeoffice.gov.uk.

Asylum support and accommodation

Asylum seekers and refugees will not be asked to leave government accommodation until the end of June 2020, the government has announced.

Junior Home Office minister Chris Philp wrote to the British Red Cross on 27 March:

… I have taken the decision that, for the next three months, we will not be requiring people to leave our accommodation because their asylum claim or appeal has been finally decided (as would normally be the case). This decision will be reviewed ahead of the end of June 2020.

The practical outcome is that those who would ordinarily have their support stopped because their asylum claim or appeal has been rejected, will remain accommodated. All those who would ordinarily be required to make their own support arrangements because they have been granted refugee status and can therefore access mainstream services, including local authority housing assistance, will similarly be able to remain in their current accommodation.

The Red Cross adds that “people’s financial support will also continue during this time”.

There is more information on this subject in an Asylum Support Appeals Project briefing on Covid-19 and asylum support (pdf).

Travel documents

The Home Office team that deals with refugee travel document applications says that coronavirus restrictions are slowing down its work, and has set up a process for urgent applications:

If any customer is in a particularly difficult situation and needs their application to be considered as a matter of priority, we would ask that this request, along with scanned recent, acceptable evidence of the circumstances and confirmation that the customer is able to travel i.e. confirmation from the airline or ferry company, is sent to traveldocumentenquiries@homeoffice.gov.uk.

Following this, if it is agreed that the case meets the criteria for being expedited and an application has not yet been submitted online, then the customer will need to complete an online application. If an application has already been submitted then the customer should not apply again as this is likely to cause confusion and may delay their application.

This should be done “only in the most urgent of cases”.

Other asylum resources

Both Right to Remain and the Refugee Council are keeping tabs on corona-induced changes to the asylum system. If you have a question not covered in this section, it may be answered there.

Enforcement-Immigration detention

The Home Office has already released around 350 people from immigration detention. But a senior official told the Home Affairs committee of MPs on 18 March:

there is no plan to have a wholesale systematic release from our immigration removal centres.

An urgent legal challenge by the charity Detention Action aimed at securing the release of all immigration detainees was rejected by the High Court on 25 March. But the charity says that the Home Office has made various commitments to safeguard the wellbeing of detainees:

Enhanced screening, identification and monitoring of those at risk or showing symptoms of Covid-19, particularly for this with underlying health conditions.
Ensuring that persons at increased risk from Covid-19, and persons who are symptomatic, are provided with facilities to self-isolate in single-occupancy rooms and are provided with individualised care plans
A review of cleaning practices within detention centres to ensure compliance with Public Health England guidance
Provision of anti-bacterial cleaning materials to detainees, upon request
The introduction of social spacing measures in communal areas
The production of specific guidance to explain in clear terms how to reduce the risk of an outbreak of Covid-19

Detention Action’s director, Bella Sankey, adds that the department has given “an undertaking to proactively review the detention of all those held under immigration powers according to updated guidance and with a view to further significant releases”. There is also a “very strong presumption against any new detentions for people facing removal to around 50 countries”, including Jamaica, India, Pakistan, Afghanistan, Iraq, Sudan, and Albania.

The Home Office says that “the vast majority of detainees still in immigration removal centres are foreign national offenders”.

With many countries closing their borders and flights unavailable, immigration judges may be receptive to the argument that removal is no longer imminent and grant bail accordingly.

As of 26 March, visits to immigration removal centres were no longer possible.

Bail reporting suspended

The Home Office website now says:

Following Public Health England’s advice on coronavirus (COVID-19), the Home Office has decided that reporting as a condition of immigration bail should be temporarily deferred while it reviews how frequently people should report. You will receive an SMS text message soon with details of your next reporting date.

This follows widespread reports of those on bail receiving texts about the suspension of reporting requirements. Those can now be taken as officially confirmed.
Voluntary removals

The Voluntary Returns Service Communications and Engagement Team circulated an update on its operations on 20 March:

…we are currently experiencing difficulties that mean that we cannot currently support assisted returns for people who require a level of assistance upon return from the United Kingdom. We are experiencing infrastructure and other issues that make it difficult to impossible to offer that level of support at this time.

We have therefore made a very difficult decision to cease offering assisted returns at this time.

We will continue to register an interest from people who wish to return, and to offer other levels of support to help as many people as we possibly can. Where we can arrange flights, get travel documents etc we will continue to do this, and we are very happy to talk to people to see what help we can offer on an individual basis.

The widespread cancellation of flights has obvious ramifications for enforced returns as well, but at time of writing we have no information about whether there will be any general suspension of removals.
Hostile environment

Right to work checks

As the labour market collapses under the weight of pandemic restrictions, the Home Office emphasises that employers must still carry out checks on the immigration status of employees to see if they have the legal right to work in the UK.

But those checks can now be carried out remotely. Guidance published on 30 March says that employees can submit a copy of their passport or ID rather than the original, and verify it by showing the employer the original on a video call.

An accompanying press release says that the changes are “effective immediately”.

The process for conducting a right to work check during the pandemic is as follows:

Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents
Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.

If the above is not possible, use the Home Office Employer Checking Service.

When the emergency is over, employers will have to re-check people hired under the temporary procedure.
Right to rent checks

Much the same procedure applies for landlords checking the immigration status of new tenants:

Ask the tenant to submit a scanned copy or a photo of their original documents via email or using a mobile app.

Arrange a video call with the tenant – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.

Record the date you made the check and mark it as “an adjusted check has been undertaken on [insert date] due to COVID-19”.

Chai Patel of the Joint Council for the Welfare of Immigrants says that “this will probably increase further the racial discrimination faced by ethnic minority Brits and migrants under right to rent. Landlords are iffy enough about non-British passports in person, likely to be even more cautious on Skype”. The Home Office says that employers should “take extra care to ensure no-one is discriminated against”.
No charge for NHS coronavirus testing

Regulations have been passed adding “Wuhan novel coronavirus (2019-nCoV)” to the list of diseases for which no charge is to be made for NHS treatment, regardless of the patient’s immigration status. This change will have most significance for short term visitors and for migrants without lawful status, who normally have to pay for NHS care. Those lawfully resident are already entitled to use the NHS.

There are separate regulations for England, Scotland, Wales and Northern Ireland, since healthcare is a devolved matter.

Government guidance makes clear that a coronavirus test that comes back negative is still free under this exemption:

This exemption from charge will apply to the diagnosis of the condition, even if the outcome is a negative result. It will also apply to any treatment provided for a suspected specified condition, up to the point that it is negatively diagnosed.

This guidance covers the NHS in England, but it would be surprising if the position in the other jurisdictions were any different.
Other
Legal aid

The legal aid system is changing in response to coronavirus, with emergency guidance in force until at least 30 June 2020.

On cashflow, the guidance says:

We recognise the current situation will have cashflow implications for firms, and as a priority we are processing bills and other payments as rapidly as possible. We are working with Ministry of Justice (MoJ) and provider representative bodies to investigate what other immediate actions we can take to support firms.

Time limits for delegated function applications, substantive amendments and appeals against Legal Aid Agency decisions have been suspended. Admin requirements are being reduced:

Routine contract manager visits to provider offices will not take place at this time and we will not be undertaking new contract audit or peer review work unless exceptionally needed.

Similarly, the Legal Aid Agency says that “we understand the current context may mean you are unable to meet the office and supervisory requirements set out in your contract and that reasonable actions will be needed to follow wider Government advice and to maintain the well being of your staff and clients. We will not take any action in this situation”.

The guidance also says that digital client signatures are just as valid as handwritten signatures for Legal Aid Agency contract purposes.
EU Settlement Scheme

The telephone helpline for EU settled status enquiries is closed, but emails to the Settlement Resolution Centre are still being answered.

Documents are no longer being accepted by post, and the Home Office is advising that there will be delays in decision-making.

Citizenship ceremonies

Local authorities are, perhaps unsurprisingly, calling off citizenship ceremonies. See for example announcements by Kingston Council and Westminster Council. The Home Office has also stopped issuing naturalisation and registration certificates, at least according to Hackney Council.

As of 31 March, the Home Office website says that would-be citizens now have six months to book their citizenship ceremony instead of the usual three. It adds that “any delays caused by COVID-19 will not affect decisions around your application”.

The process of becoming a British citizen is not legally complete until the person has attended a citizenship ceremony: section 42 of the British Nationality Act 1981.
Subject Access Requests

The Subject Access Request Unit has told ILPA that it is only processing requests made online, and only providing data held electronically, until further notice. The unit can be contacted at subjectaccessrequest@homeoffice.gov.uk.
OISC

The Office of the Immigration Services Commissioner has cancelled the Level 1 competence exams scheduled for 31 March and 30 April.

The next set of exams on the slate are on 26 May in Manchester and 29 May in London. The OISC says that these are under review: “an update on assessments due to take place in May 2020 will be published in the coming weeks”.

There is also a Q&A for OISC advisers.

The OISC office itself is closed as of 24 March. All correspondence should be by email rather than post.

This article was originally published on 20 February 2020 and is being continually updated with the latest information

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