COVID-19 | Furlough for international employees working in the UK

COVID-19 | Furlough for international employees working in the UK

UK business continues to feel the adverse side-effects following the spread of the coronavirus (COVID-19) around the globe. Whilst the government’s support with furlough is applicable for UK workforces, what is the impact on international employees sponsored to work in the UK?

This webinar will explore the immigration consideration and implications of different actions employers may be forced to take to protect their businesses over the upcoming months.

Further information on how to manage the impact of coronavirus can also be found on our coronavirus resource hub and you can view past webinars at SHMA®ON DEMAND.

Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.

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Webinar transcript

(Please note this is auto-generated and un-edited)

Hello and welcome to today's webinar on the impact of the coronavirus on International employees who are furloughed in the UK. My name is Jon Heuvel and I'm a partner in the employment team here at Shakespeare Martineau. And today is a doubleheader with my colleague. My name is Tijen Ahmet and I'm legal director. Also in the employment department practicing business immigration.
And you'll see on the screen as we go along today that you can ask questions and answers. Please do so and at the end we'll try and answer as many of those questions as we can. I suspect we won't be able to get through all the questions. So we'll share a summary of those that we haven't answered with everyone after the webinar.
So just a quick recap in terms of the furlough scheme, which is officially known as the coronavirus job retention scheme as most of you will know now the scheme Was first announced by the chancellor of the exchequer on the 20th of March 20 20 since then we've had four different variations of the guidance. The latest version is now found on the web of government website, which gives you the guidance which is split into both an employer guidance and an employee guidance and there's also the treasury Direction which is really where the official rules of the scheme exist.
So just to pick up on a couple of changes to the furlough scheme since the previous webinars that we've done on this.
Initially the employees who are eligible had to be on the payroll before the 28th of February that's now changed and it's now those on the payroll before the 19th of March. So it's captured a wider group of employees. Don't forget that to be able to follow your employees. You will so as an employer have to have had your PA Why scheme registered with hmrc on the RTI the real-time reporting?
As at the 19th of March claims portal opened yesterday the 20th of April early signs are that it was working very well claims have been reported as being easy to operate. So hopefully people will start seeing the money on that flowing through towards the end of this week.
The other extension is that whereas originally the scheme was only going to be open until the 31st of May government has now announced that it will increase the period for which furlough will apply through to 30th of June 2020. So a four-month period now, there's obviously aren't the only points about furlough, but I just wanted to pick up on those there were changes from from previous guidance. So one of the main questions that businesses have started to ask is in relation to tier 2.
Sponsored staff and whether or not they're a category of employees that can be furloughed and if they can would there not be negative effect on their visas teaching what so what's the position on this? Thank you very much Jon. So this is a question that we like you said we're being asked by many of our clients across all different sectors. The answer is yes, your tier 2 sponsored staff are eligible to be furloughed.
There was some concern that at the grants from the government under the scheme derived from public funds and of course to to sponsored employees are prohibited from having recourse to public funds. Thankfully the government released guidance to confirm that grants under the scheme are not counted as access to public funds for the purposes of the immigration rules.
And you can therefore furlough employees under this particular Visa category. I think it is. However important to recognize that if there is a reduction in an employee's salary that may in fact entitle that staff member to support through the UK welfare system that is not available to tier 2 sponsors staff.
So the position remains that claiming any other benefit would be Breach of their immigration conditions which could lead to the individuals immigration permission being cut short or in fact future applications being refused and more imperative to business is that it could potentially lead to compliance action being taken against them as a sponsor. Okay? Thank you. So has there been any official guidance so far on the position when furloughing tier 2 sponsored staff?
Unfortunately today there's been very little published guidance on furloughing tier 2 staff and of course there are extra considerations or if you like certain pitfalls that businesses should be taken into account.
Just looking at the government guidance that has been published so far hmrc updated their guidance on the 9th of April to say that foreign Nationals are eligible to be furloughed under the coronavirus job retention ski Team and grants as I've just mentioned will not be counted as access to public funds.
In addition to that Guidance the home office have also published their own guidance at the beginning of this month as advice to tier 2 4 & 5 sponsors during the coronavirus that says that if you temporarily reduce pay to eighty percent of their salary or indeed the maximum of two thousand five hundred pounds per month under the scheme any reductions must be part of a company-wide policy.
To avoid redundancies and in which all staff are treated the same also any such reductions must be temporary and the employees pay must return to at least previous levels. Once these Arrangements have have of course ended. Okay. Thank you. You talk about reduction in salary and obviously with immigration all those on it on immigration status there is often a minimum.
We threshold in order to obtain the Visa or permit to work what happens? If as a result of the furloughing their salary drops below the required Level under the immigration rules. Yes. It's really good question. And you're right that the minimum salary threshold needs to be paid for the duration of their employment with you as an employer.
So if if for example the salary does reduce The usual position is that reduction in salary would trigger a reporting obligation. So as a sponsor you would be reporting to the home office via your sponsor management system and you'd have to do that within 10 working days of the reduction of that particular salary. However, the recent home office guidance is very very brief. And in fact silence on this particular point, so there's no clear.
Are indication at Presence of Maintenance of minimum salary fresh holds while an employee is furloughed. So just to give you a basic example, Jon is if we look at the minimum salary threshold to sponsor somebody under the tier 2 general rules that is currently 30,000 pounds per annum if the two two employees annual salary is say 35,000 pounds by furloughing them.
The government will pay 80% of that which brings their salary down to 28,000 pounds. So that would then be below the required level.
What employers can in fact be looking at doing in this scenario is when following staff the position we would advise and this isn't this is this is in no guidance so to speak but this is in fact recommendation at present where there's the guidance is silent is where there is a reduction in salary the employer chooses to top up.
So in other words may pay more than the 80% That's that the government We'll pay be paying back in order to ensure that that individual is meeting the minimum salary threshold. Of course, if that dropping salary doesn't take them below the minimum salary, then there's no required core requirement to top up. We're optimistic that the home office will provide further guidance on this hopefully in the not too distant future, but meanwhile as advise when furloughing tier 2 employee's salary should not drop below the required.
Wired minimum salary threshold. So what about employees in slightly different scenario? So take for example, somebody who's on sick leave rather than having been furloughed. Yes. That's very good question Jon and in the event that a tutu employee is on sick leave during the coronavirus outbreak.
The home office have said that salary levels can drop below the required minimum salary threshold during The specified period of sickness and it's therefore important that employees are recording and have evidence that any such sickness is a result of the coronavirus outbreak and some businesses. I know are putting employees on unpaid leave. Is that something that's possible for a tier two employee? Yeah.
I'm a bit before on that point Jon just before taking any decision in respect of employee in Employers putting their staff on unpaid leave. It's really important that they consider their sponsor compliance duties. Now these stipulate that tier 2 sponsored employee cannot take more than four weeks of unpaid leave per calendar year according to their normal working pattern. So ordinarily the home office requires the employer to withdraw sponsorship where this actually occurs.
The home office guidance published on the 27th of March says that sponsors are not required to withdraw sponsorship and will not face any enforcement action against them if an unpaid absence from work or length is authorized and is due to the coronavirus outbreak furthermore. These particular absences do not need to be reported via the usual reporting obligations.
The guidance does however refer to absences including illness isolation or inability to travel due to travel restrictions. And other one is I also take the view that the closure of schools and childcare providers would also be covered as being due to the coronavirus outbreak. Okay.
And what about the scenario if The business has to actually look at terminating employment making redundancies that sort of thing as a result of economic turndown there any particular considerations to bear in mind for tier 2 sponsored employees. Yes. So usually in the normal circumstances where you are terminating employment you would as an employer need to report this to the home office via the sponsor management system and you must do this within the 10 working days.
A a requirement that's 10 working days from the last day of their employer employment. This will of course initiates a process of Visa curtailment. So their visa will be will be taken away and that then triggers a 12-month cooling-off period so the home office will then issue the egg talmud notice to the individual employee which will shorten their permission to stay in the UK.
Up to 60 calendar days and confirming their new Visa expiry date and that could tell men will also apply to any dependent family members as well between termination of the employment and the new expiry date. The individual is then permitted to seek alternative sponsorship.
So if they can secure a job with another sponsored employer they can do so if they cannot do that they can if eligible switch to an alternative immigration category and must do so within those 60 calendar days. However, if they're not able to find a new sponsor the individual and of course, they're dependent family members would be expected in that case to leave the UK or face in former enforcement removal. Now that isn't possible in today's climate the home office guidance.
However on the 24th of Arch confirms that people will be allowed to extend their stay in the UK in these circumstances where they would normally have to apply from abroad but all other requirements and the fees application fees remain unchanged. So the point to take away from that is that if sponsorship is ending as a result of terminating employment or or redundancies, then they will be able to extend their visas.
And remain in the UK at least until travel restrictions are lifted following the coronavirus restrictions.
Thank you very much. Unless quite a good spot really to to end the story so far as furlough concerned we've got time for a few questions and we've had quite a few during the course of this talk. I'm just going to pick out a few the first one here is somebody's asked when should I be reporting? And what should I be reporting to the home office?
Yes, so aside from the fact that You do not need to report that any of your employees are working from home. Any other changes to the employees circumstances, for example, as a result of their salary changing or indeed reduction of hours those we recommend should be reported as normal and this is done via the sponsor management system and can be done as what we call a change in migrant circumstances.
Okay, thank you. Another one had no this isn't actually about the furlough scheme. But I think it's a good one to ask in the context of what is happening at the moment and somebody's asked. How do we go about conducting a right-to-work check when we can't see the person physically in order to check their ID documents.
Yeah sure that that again is a very common question that we're getting from from clients at the moment and to make it Easier for employees employees to carry out right-to-work checks. They have been the guidance has been temporarily adjusted due to the coronavirus. And as of the 30th of March checks can be carried out via video calls. So for example Skype Zoom meetings as well as well as those checks being carried out via video calls and documents can be scanned or indeed.
Photographed using your mobile phone or using an app and can be emailed to the employer rather than sending them The Originals. So that's quite a quite a big change that is going to be very very helpful for employees doing checks during this particular period if a right-to-work document is not an acceptable document. I have to stress that the Employers in this case we can use the employer checking service.
Um, however right-to-work checks are still necessary. So I just want to stress that point Jon just because of covid-19 doesn't mean that they're no longer required.
You still need to conduct checks in accordance with the guidance and during this time employees need to be extra vigilant and take care to ensure that no one of course is being discriminated and if they are unable to show documents again, you cannot start Until you have seen an acceptable Right to Work document.
Fine. Thank you though. That's very clear and very helpful. I think we've got time for one last question. I have a tier two employee who currently on furlough, but would like to undertake some volunteering are they allowed to do so, okay. And again, we've got no guidance on this.
So there's no official written guidance, but there is the to to sponsor guidance that we can rely on here, which says that a tier two employee, Can take voluntary work in any sector as long at ease as long as that that work is unpaid my view on this is that this could only be for a period of four weeks in line with the current guidance. And that's that that those back to the to to glance that says that unpaid leader for weeks can be taken and is allowed when sponsored and adhere to know.
Options would apply here because any such absence to undertake voluntary work is not because of or hasn't been caused by the coronavirus outbreak. So my current view is until any such guidance States. Otherwise is that an employee who is furloughed can take up to four weeks of voluntary work?
Okay, thank you. That's very clear. Well, I think we're right up against it on time.
So thank you for all your questions will answer the other one separately offline and share those with everyone All That Remains for teaching and I to do is to say thank you very much for listening and to let you know that the next one will be on Thursday, which is my colleague Matthew Parr who will be talking about how to protect your personal affairs during a crisis and for Any other information and four copies of all our previous webinars, please do look at the Hub that details of which is up on the slides now. Thank you for listening. Goodbye.

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