Kelly Hardman: Jobs, redundancy and the immigration dimension
Foreign nationals who are in the UK on sponsored visas find themselves racing against the clock following a redundancy, but employers also bare responsibility, writes Kelly Hardman.
Global companies across a swathe of sectors, including finance and technology, continue to announce job cuts and many people may be eyeing their job security prospects with some concern.
While losing a job is stressful for most, foreign nationals who are in the UK on sponsored visas find themselves racing against the clock following a redundancy — worrying about themselves and their dependants whose ability to work and study in the country is also impacted.
From an immigration perspective, following a layoff, both the employer and employee must adhere to a series of processes as related to sponsored workers.
Employers are required to notify the Home Office within 10 working days of the employee’s last working day that their sponsorship has ended. The last working day is deemed the end of notice period or gardening leave, unless employment is terminated immediately with no notice.
If the sponsored worker has fewer than 60 calendar days remaining on their visa, UK Visas & Immigration (UKVI) may not act and instead the worker will be expected to leave the UK on or before their visa expiry or file an intime application to change their status — if they’ve started working for another sponsor, for example, or switched to a different visa category.
If the worker’s visa remains valid for more than 60 calendar days, UKVI will normally curtail the visa to 60 days from the last day of employment. However, the 60-day window is discretionary as it can take more than 60 days for the UKVI to action the curtailment or attempt to contact the worker. The safest approach is to count the 60 days from the last working day or visa expiry, whichever is the earlier.
A note of caution - sponsored workers don’t always receive confirmation that the curtailment has been processed, and it would be a mistake to wait for a letter or email from UKVI. While the UKVI may send a communication to the last known address, this depends on the sponsor — the former employer — having entered these details accurately when submitting the curtailment notification. On the flip side, if a letter doesn’t arrive, the employee should still ensure they’ve taken steps to file an intime application or take steps to leave the UK within 60 days of their employment ending/prior to their visa expiry (whichever comes first).
Workers shouldn’t attempt travel once the curtailment notification is submitted unless they plan to leave the UK on a longer-term basis. Attempting re-entry on a visa that is in the process of being curtailed can create issues at the border and, in more serious cases, could be considered deception or misrepresentation.
Worker options – and their pitfalls
As suggested above, a sponsored worker does have options. The most obvious would be to obtain new sponsorship with an employer that holds a sponsor licence and is able to sponsor foreign nationals. Not all companies may hold a licence and while a prospective employer may be keen to hire the worker, the lead time to secure a licence and new sponsored visa could be at least three months. In that case, the individual may need to be prepared to leave the UK and make a fresh application from overseas.
Having to leave the UK can present additional challenges or disruption. Family members may also need to leave, interrupting their right to work or study. It may also impact any right to rent, and it entails a costly process for a prospective employer — possibly tipping the employment scales in favour of other candidates.
The cooling-off period may also apply to any impacted workers that hold a Global Business Mobility (senior/specialist worker), formerly known as an Intra Company Transfer (ICT) visa.
Other options for the worker might include switching to a Spousal, High Potential, Global Talent, Start Up or Innovator visa. It should be noted that it’s not possible to switch into the Ancestry category from within the UK, so the applicant and family members would likely need to return overseas to make such an application. Switching category or leaving the UK for a prolonged period may also impact indefinite leave to remain (ILR) status.
Starting work for a new employer
If the worker does secure sponsorship to work for a new employer, the application must be approved before they can commence employment. If they switch to a new visa category that isn’t tied to sponsorship, equally they must wait until the application is approved before being able to demonstrate their right to work. The worker should also ensure the visa of any dependant is updated to bring their new status in line with the main applicant.
Given ongoing processing challenges and delays, workers may find themselves in situations beyond their control where there are gaps in employment which can result in financial strains. That is why it’s very important that action is taken in a timely manner to secure new work authorisation should the worker wish to stay in the UK.
Strategic thinking: what can employers do?
From the outset companies can and should provide employees with the information they need related to deadlines and elements as early as possible so they understand the impact to their visa should an involuntary termination to employment occur.
Sponsored work visas carry the highest stakes, whereas non-sponsored visas may not be directly impacted. However, it may not always be so straightforward: there are nuances.
Be in the know: key employee actions
Workers should ensure they appreciate the impact redundancy has on their visa type and any visas held by family members. They should understand the different deadlines and travel risks associated with the termination of their employment.
If they’re applying for a new role or trying to secure new sponsorship, they need to check whether the prospective new sponsor has a licence and is aware of the deadlines associated with their visa expiry and their last day of employment — calculating 60 calendar days from this date to be safe.
For those contemplating a switch to an alternative, non-sponsored visa — such as Spousal, High Potential, Global Talent, Start Up and Innovator — they need to bear in mind any possible impact on ILR and, specifically, whether their ILR clock might restart when switching to certain categories.
Workers can also pursue the option of piggybacking off the status of a spouse or partner, with the latter becoming the main applicant and the worker becoming the dependant. In this scenario, it’s important to bear in mind the impact upon time accrued towards ILR.
There are departure obligations, such as returning Biometric Residence Permit (BRP) cards to avoid the risk of a £1,000 fine. If the worker holds electronic status (that is, EUSS or the visa was granted through the ID Check App), there’s no requirement to return a document, but they need to ensure their electronic profile is up to date.
All of this only covers the immigration considerations in the event of a redundancy. As there are several other factors that come into play from an employment, tax and social security perspective, employers should seek specific specialist advice on each.
Alternative work arrangements
In the wake of the pandemic and the war in Ukraine, the economic downturn has become a major factor in many assignment and mobility decisions. There has been a sea change in the acceptance and concept of remote working in the last three years — the number of jurisdictions now offering remote work visas has levelled off and related immigration laws have been codified.
As employers become more comfortable with the potential challenges and logistics associated with more established remote work visas, we expect to see a surge in interest in digital nomads. While arguably unusual, some employers may be able to explore alternative work arrangements for those at risk of redundancy; likewise, employees in specific sectors may find opportunities to work as consultants/secure contract work in alternative locations which is potentially now possible given the creation and introduction of digital nomad/remote worker visa options.
Kelly Hardman is a solicitor (senior manager) with Fragomen