Posted on Feb 19, 2020 in Employment by Gurjit Pall
The coronavirus, officially known as the COVID-19, has now claimed more than 1,800 lives. It has infected more than 72,000 Chinese citizens and has now spread to more than 25 countries. To put it in context, 774 people were killed due to the 2003 SARS epidemic.
The figures associated with the current outbreak of COVID-19, which originated in Wuhan, China on 31st December 2019, are truly staggering. The World Health Organisation (WHO) has now declared a global health emergency. In the UK, over 4,900 people have been tested for this coronavirus; all but nine people have been confirmed as being negative.
Due to the Coronavirus outbreak, the UK government has now recognised that some individuals - most of whom will be Chinese nationals - will be facing uncertainty in relation to their Immigration status in the United Kingdom and as such, the UK government has provided guidance for those affected and set up a Coronavirus Immigration Helpline.
The guidance confirms that individuals residing in the UK whose immigration status is affected by the coronavirus outbreak will get an automatic extension of their visa until 31st March 2020. This in my view suggests that this automatic extension is to protect individuals who would have ordinarily returned to China at the end of their visa. The Coronavirus outbreak has resulted in these individuals not being able to return to China and as such, they must remain in the UK.
In light of the guidance provided, we have provided answers and comments to questions most commonly asked by clients.
I am a Chinese national residing lawfully in the UK but my visa has recently expired or is about to expire. What should I do?
Chinese nationals in the UK who have been compliant with the conditions of their visa prior to the coronavirus outbreak will have their leave automatically extended to 31st March 2020. To be eligible for this automatic extension, your visa must expire between 24th January 2020 and 30th March 2020. The Home Office guidance confirms that the Chinese national will not need to do anything to get this extension and the individual will be subject to the same immigration conditions as their last visa during the extension period. For example, a Chinese national whose leave as a Tier 4 (General) Student expires on 20th February 2020 will continue to be a Tier 4 (General) Student until 31st March 2020 – provided that the individual in question was compliant with their leave as a Tier 4 (General) Student visa holder.
As an employer, should I continue to employ a Chinese national?
This is going to be a problem for employers as employers will most likely not be aware of this guidance, particularly as the affected individual(s) will not automatically receive a new visa or a new Biometric Residence Permit Card. Employers must prove that Right to Work checks have been correctly complied with and for non-EEA nationals, this means that an employer will normally assess the individual’s right to work with the information available on the valid and original Biometric Residence Permit Card. In the example provided above, the Chinese national will continue to be a Tier 4 (General) Student, having completed his or her degree, and under certain circumstances, this individual may be eligible to work full-time now that his/her course has been completed. However, the Chinese national will not automatically be given a BRP card to prove that the individual can continue to work full-time until 31st March 2020.
The Chinese national will have a new expiry date (31st March 2020) but apart from the individual affected potentially being aware of this extension and the new date being added to UK Visa Immigration’s systems, no one else will automatically be aware of this extension.
Chinese nationals have been advised to contact the Coronavirus Immigration Helpline on 0800 678 1767 or by emailing CIH@homeoffice.gov.uk. Chinese nationals will then be able to request a status letter confirming this extension, or a new Biometric Residence Permit with a revised expiry date.
As an employer, you should ask your current employee or potential employee to contact the Coronavirus Immigration Helpline to seek a new Biometric Residence Permit with a revised expiry date and also utilise the online Right to Work Checking Service.
I am a Chinese national residing lawfully in the UK and I have already applied for an extension. What should I do?
The guidance provides that where you have already applied to extend your visa, the Home Office will not expect you to do anything and where you are intending to apply to extend your stay in the UK before 31st March 2020, the Home Office recommends that the individual should continue to do so.
Individuals who are seeking extend their leave, for example, as the holder of a Tier 2 (General) leave, where eligible should continue to do so. Successful applicants would be granted further leave to remain in the UK.
I am a Chinese national in the UK currently on a Tier 2 Intra-Company Transfer (ICT) visa. What should I do?
As a Tier 2 (ICT) applicant, you will normally be granted leave up to 5 years. Unless you earn £120,000 or more, you will not be able to extend your stay beyond 5 years. If you intend to return to the UK, you will be expected to meet the “12-month cooling-off period”.
Chinese nationals, currently in the UK as a Tier 2 (ICT) holder, who were intending to switch to a Tier 2 General visa, would normally need to return to China to make this application. The guidance confirms that the Home Office caseworkers will exceptionally allow applicants to switch from a Tier 2 (ICT) visa to a Tier 2 General visa from within the UK provided you can prove that you are a Chinese national whose visa has an expiry date between 24th January 2020 and 30th March 2020; have paid the relevant fee; and met all the requirements of a Tier 2 General visa – with the exception of the requirement of applying from China.
Common sense seems to have prevailed here given that UK Visa Application Centres in China are currently closed due to the Coronavirus outbreak.
As a Licensed Tier 2, Tier 4 or Tier 5 sponsors, should I continue to sponsor Chinese nationals?
Yes, provided the Chinese national is eligible for the automatic extension. As highlighted above, Chinese nationals will be permitted to apply for extensions of their visa or switching their leave provided they meet the requirements of that application. For example, a Tier 4 (General) Student visa would be permitted to switch their visa to a Tier 2 (General) visa provided the individual meets the requirements of that application.
The guidance provides information on absences due to coronavirus and how this is potentially going to impact some Tier 4 students and/or Tier 2 and Tier 5 employees. In the UK, over 4,900 people have been tested for coronavirus and it is likely that this number will increase, particularly given that the fact there is no vaccine and no specific treatment for the virus.
As a result, the Home Office have recognised that these students and employees may be prevented from attending their studies or employment due to illness, caused by coronavirus. Students and/or employees may be required to serve a period of quarantine or be unable to travel due to travel restrictions.
Licensed Tier 2, Tier 4 and Tier 5 sponsors do not need to report student or employee absences related to coronavirus which have been authorised by the sponsor – however, the guidance states sponsors will be responsible for making decisions in respect of whether to withdraw a student from their studies or terminate an employment.
Whilst the Home Office recognises that the current situation is exceptional, they are still placing the onus on licensed Tier 2, Tier 4 and Tier 5 sponsors to make the final decision. The guidance confirms that licensed Tier 2, Tier 4 and Tier 5 sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when:
- a student will be unable to attend for more than 60 days
- an employee is absent from work without pay for four weeks or more
The Home Office has confirmed that they will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason. In my view, documentation in relation to the coronavirus outbreak should be kept by sponsors and students/employees affected.
I live in the UK but I am not a Chinese national and I am normally resident in China. Do I need to leave the UK?
Provided you can demonstrate that you are normally resident in China and that your visa in the UK is due to expire between 24th January 2020 and 30th March 2020, you will be expected to contact the Coronavirus Immigration Helpline. The Coronavirus Immigration team will have to be satisfied that you are normally resident in China before they would be able to extend your visa to 31st March 2020. Any extension period granted by this team would mean that you would be subject to the same immigration conditions as your last visa.
Additional points to bear in mind
The Coronavirus Immigration Helpline is now live however the waiting times to speak to someone at the Coronavirus Immigration team are exhaustingly long. This is perhaps due to a high number of calls being received. A Senior Immigration Officer has recently confirmed that she usually worked in the Windrush Scheme Team but was helping the Coronavirus Immigration team so it does seem very much an all-hands-on-deck approach from the Home Office!
The government has confirmed that the Coronavirus immigration guidance will kept under regular review and as such, given that there is no vaccine or specific treatment for this virus, it can be expected the extension period currently to 31st March 2020 will most likely be extended further.
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