Worried that furloughing or redundancy could affect your visa? Here’s what you need to know – questions and answers
As a Tier 2 visa holder, can my employer cut my pay and place me on the government’s furlough scheme?
The short answer is yes. An employer can cut a Tier 2 worker’s salary once they are in the UK without it affecting their visa status.
Usually there is a problem if the cut takes the person’s salary below one of the salary limits for the visa route, such as the experienced worker threshold currently set at £30,000. In normal circumstances an employer has to stop sponsorship at this stage unless the cut is for reasons such as maternity, paternity or sick leave.
The government’s Coronavirus Job Retention Scheme — the furlough scheme — has meant that many employers have been forced to cut the pay for Tier 2 workers below the salary limits for the visa route. In response, the Home Office announced a concession allowing sponsors to temporarily reduce the salary of a sponsored worker to 80% of the salary recorded on their certificate of sponsorship, or £2,500 per month, whichever is lower. This means that the salary can fall below one of the appropriate limits without an employer having to stop sponsorship. The pay cut does not need to be part of the furlough scheme for the concession to apply.
There are some restrictions. The concession only applies to businesses which have temporarily reduced or ceased trading. Any reductions “must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same”. The pay cut cannot be permanent; the salary must return to its original level “once these arrangements have ended”.
I am on a Tier 2 visa and am being made redundant. What happens next?
There is unfortunately not much good news for those at risk of redundancy. The government has yet to announce an immigration concession for anyone who has lost or is at risk of losing their job.
For anyone in this position, this is the likely chain of events.
Your employer must, within ten working days from the last day of your employment, notify the Home Office that you have stopped work. They should tell the Home Office the reason you left your job and your last known address.
This should then initiate the process of visa curtailment (in other words the process of cancelling or reducing the length of your visa). Under paragraph 323A of the Immigration Rules, the Home Office must curtail a Tier 2 worker’s visa if they have stopped work earlier than the end date on the certificate of sponsorship.
There is not, however, a set time frame for this. We have seen cases where Tier 2 visa holders have not heard from the Home Office for several weeks, or even months, since they left their job. During this period you can lawfully remain in the UK. The fact that you have stopped working does not, on its own, invalidate your status. The Home Office has to actively “cancel” your visa.
Is there any way to stop them curtailing my visa?
When you do finally hear from the Home Office they may simply tell you that your visa has already been curtailed and the letter will tell you the new expiry date of your visa. Unfortunately there is no right of appeal against this decision.
Officials do have some discretion when making a decision, for instance if the worker has a dependant under the age of 18. You may then receive a letter indicating they are considering you for curtailment and will ask you to provide any information which will assist them to make that decision.
This is your opportunity to put forward the reasons why you should be able to stay in the UK. These could include the impact that leaving the UK could have on your or your family’s health. We do not know to what extent the Home Office will consider the impact of the COVID-19 crisis when making a curtailment decision but it is certainly relevant. For instance, junior minister Kevin Foster said in the House of Commons on 23 March 2020 that:
We are very clear that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control.
Whether this promise will cover Tier 2 workers who have been made redundant remains to be seen. Vague and imprecise political statements hold little sway with a Home Office caseworker. Nevertheless, it is well worth seeking advice from an immigration lawyer at this stage to build your strongest case. It is also important to seek advice if your visa has been curtailed and you believe the decision is incorrect or the Home Office has failed to exercise discretion.
What if my visa is curtailed?
If a decision is made to curtail your visa you will be issued with a “curtailment notice” shortening your permission to stay in the UK to 60 calendar days. If there are fewer than 60 days left on the visa you will be able to see out however long is left. The curtailment will also apply to any dependent family members.
So if you have lost or are at risk of losing your job, you do have some (potentially even a considerable amount of) time to take stock and consider your options.
You might, for example, be able to make a new application to remain in the UK if that is what you want to do. If you have a Tier 2 (General) visa and are able to find another job with an employer who has a Tier 2 (General) sponsor licence, you can make a Tier 2 change of employment application to move employers. You may also be able to apply in a different visa category. Again seek advice from an immigration lawyer to see what options you have.
If you are not able to move to a new employer or into a new visa route then you and any family members will be expected to leave the UK before the expiry date of your visa or face potential removal.
If you are in this situation, make sure you check the Home Office’s coronavirus guidance. Anyone with a visa expiring before 31 May 2020 is currently being given an automatic extension until the end of May. There is every chance that this date could be pushed back if the COVID-19 travel restrictions continue.
It might seem strange that you could have your visa cancelled, and then extended, but the policy recognises that travel to many countries is simply impossible at the moment. Ultimately, however, these extensions will be halted when the Home Office decides that people can physically leave the country.
One thing to bear in mind is that once you leave the UK or move to another visa category, a “cooling-off period” is triggered, which will prevent you applying under the Tier 2 category for 12 months, with some limited exceptions. If you are wanting to remain in the UK, and you cannot move into another visa category, it is important then that you try to find another job with a sponsor before your current Tier 2 (General) visa expires. If not you might have to wait another year to return to work in the UK.
Can I still apply for indefinite leave to remain if I am furloughed or made redundant?
If you are due to apply for indefinite leave to remain (aka settlement, or ILR) and your salary has recently been cut due to furloughing, this could have implications for an ILR application. There is a minimum salary threshold for a Tier 2 (General) ILR application, currently £35,800.
We are waiting for the Home Office to confirm whether it will exercise discretion in this instance for individuals whose salary is ordinarily above £35,800 but has dropped below on a temporary basis due to furloughing. We will update once we know more.
A sponsor is required, as part of an ILR application, to provide a letter for the applicant confirming they will be employed by them for the foreseeable future. If you are at risk of losing your job or have lost your job then an employer may be unwilling or unable to provide this letter. If you are facing this problem, you should seek legal advice on whether there is still merit in applying for ILR.
I’m on a Tier 5 visa. Will the above apply to me?
If you are on a Tier 5 (Temporary Worker) visa, you are considered a sponsored worker so the above measures will also apply to you. The ability for you to move immigration category or change employers will depend on the Tier 5 subcategory you are in.
For anyone with a Tier 5 (Youth Mobility Scheme) visa, this is a two year visa allowing the holder to take up any employment they choose. Your status in the UK is not linked to your employment so your visa will be unaffected by redundancy or furloughing.
I need to maintain a minimum income for a family visa extension. What about me?
If you or a family member were intending to make a family visa application or extension under Appendix FM you will have become familiar with the minimum income requirement. This requires an applicant and/or their partner to demonstrate an income of £18,600 a year.
If you are at risk of furloughing or redundancy and your salary is needed to get over the minimum income threshold, apply as soon as you can. Your income should be assessed as it is at the date of application — even if the application is placed on hold and your salary subsequently drops.
Unfortunately, the Home Office has not provided any concessions that would waive the minimum income in the special circumstances of COVID-19. So if you have already lost your job or are on furlough you will have to see if you can meet the income threshold in another way.
Can I claim benefits?
This is likely to be difficult, I’m afraid. If you are a Tier 2 or Tier 5 visa holder, your visa has the condition that there should be ‘no recourse to public funds’ (NRPF). That forbids access to a number of benefits that are on offer to other UK residents.
The government has issued guidance which confirms that even if your biometric residence permit is endorsed with ‘no recourse to public funds’ you can still claim the following:
- Statutory Sick Pay
- Contributory Employment and Support Allowance, if you have made sufficient national insurance contributions
- Support provided to employers through the Coronavirus Job Retention Scheme
Posted on May 19, 2020.
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