This article was co-authored by Claire Nilson, Counsel, and Hodon Anastasi, Associate, at Faegre Drinker.
Before COVID-19, office workers were often geographically tied to their offices, and it was mainly business travellers and the lucky few digital nomads who travelled regularly while working. Now these established norms have evolved as homes became offices, city centres became ghost towns, and foreign workers looked to escape back to their home countries while keeping their UK job.
Companies that have plans to adapt flexible working and who have no plans returning their employees back to the office at the end of this pandemic, should be aware that work from home arrangements are difficult for Tier 2 visa holders and even long-term remote working from inside the UK may create a problem for these visa holders.
Can a sponsored foreign national employee work remotely?
Many Tier 2 employees are currently working from home as offices encourage remote working. A Tier 2 sponsor must normally report a change in work location on the sponsor management system within ten working days. On 27 March, the Home Office published a COVID-19 guidance for companies that sponsor foreign national employees or students under Tiers 2, 4 and 5 of the Points Based System. The guidance states “we will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to COVID-19.” As such, sponsors are not required to report any absences from foreign national employees sponsored under Tier 2 and Tier 5 where those absences have been the result of the consequences of the COVID-19 outbreak.
Can a sponsored foreign national employee remote work from abroad?
It is only natural that foreign national employees sponsored on Tier 2 visas are questioning whether they can return to their home countries and work remotely from there. After all, many other countries have far lower rates of infection than the UK as well as excellent broadband facilities, meaning that it could potentially be safer and more efficient for sponsored foreign national employees to work in their home country.
Whilst the Home Office relaxed some sponsor licence reporting rules relating to sponsored foreign national employees because of the COVID-19 pandemic, sponsored foreign national employees risk their Tier 2 visas if they return overseas to work remotely. In addition, companies could risk their sponsor licence if they don’t comply fully with their sponsor licence reporting and recording duties.
It is a question of degree as a sponsored foreign national employee may return to their home country and undertake some work temporarily but that is a different scenario to an employer agreeing to what could be an extended period of overseas remote working. In addition, any sponsored foreign national employee needs to be careful about how long they spend overseas if they plan to apply to settle in the UK through securing Indefinite Leave to Remain (i.e., permanent residency). That is because the eligibility criteria for an Indefinite Leave to Remain application includes a residence requirement. Whilst foreign national employees can spend time abroad, there are limits to how many days a year they can be outside of the UK. The Home Office can waive the rules in cases where there are exceptional circumstances, such as travel restrictions due to COVID-19. This is different to the scenario where a sponsored foreign national employee returns to their home country to work remotely as a matter of personal preference.
We recommend that companies continue to report any other changes to the Home Office, e.g., if a sponsored foreign national employee is working out of another office abroad or continues to work from home either in the UK or abroad in circumstances the sponsor has assessed are no longer related to COVID-19 restrictions. Companies should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing compliance, reporting, and monitoring duties.
Will remote working continue after COVID-19?
Before COVID-19, remote working was an area that was silent in the Home Office Sponsor Guidance. The guidance confirmed that any sponsored job must be a “genuine vacancy”, and the Home Office examples of “non-genuine vacancies” include jobs with exaggerated duties or jobs that are only created to allow someone to enter and work in the UK. There is no suggestion that a remote worker is not a genuine one. When an interpretation or rule is silent in the guidance or in the Immigration Rules it tends to be discretionary. Since the definition of a “genuine vacancy” was removed from the Immigration Rules, the Home Office has discretion to decide this point.
In my many discussions with the Home Office, they have always seemed to be fine with sponsored foreign national employees working from their UK home on occasion as long as they are in the office most of the time. Pre-COVID-19 the Home Office stance was that if the job can be done remotely there is no reason it can’t be done in the individuals’ respective home countries without needing a visa or for them to come to the UK.
The Tier 2 visa is due to be replaced by the Skilled Worker visa in January 2021 under the new Post-Brexit immigration system. Although the basic goals for this visa category will remain broadly the same as the current Tier 2 General category, there is no indication that the remote working will be covered in the new rules. Until the Home Office change the guidance, companies that have Tier 2 (or Skilled Worker) sponsored employees and are considering increasing the number of remote workers once lockdown eases will need to consider how they can continue to meet their compliance obligations.
We recommend that all companies with sponsored foreign national employees on Tier 2 visas start to consider these remote working issues now. We recommend that companies review their remote working policies that they have for Tier 2 employees and keep evidence on the Tier 2 employees’ files to show that their role is a “genuine vacancy”. We also recommend that companies who plan to give up their office space consider how they can demonstrate that the roles of their sponsored foreign national employees can only be done from inside the UK. If these individuals are working remotely, why are they needed in the UK?
With government advice to work from home where possible, followed by encouragements to return to our workplaces, and then with a quick U-turn and a repeat of the recommendation to work from home, it is unsurprising that business owners, HR advisors, and employees are uncertain about what they should do for the best. In my view, as technology advances, the Home Office will need to consider a relaxation of their views on remote working as it will become a key part for most companies. However, this is something that is unlikely to be considered or relaxed anytime soon.
Claire Nilson is Counsel (Head of Immigration & Global Mobility Team) at Faegre Drinker.
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