The UK’s Skilled Worker sponsorship system, which is largely a rebranding of the former Tier 2 (General) category, was designed well before the recent rapid shift to remote working could have been imagined. Some of the UK Visas & Immigration (UKVI) guidance has not aged well; parts of it have been left largely unchanged for many years. Following the pandemic, and as we continue to see large numbers of employees working remotely, a clarifying of the position from UKVI for sponsored workers might be welcomed.
How did the pandemic change the position on remote working?
It has always been the case that in the certificate of sponsorship (CoS) sponsors need to state the sponsored worker’s main work address. Of course, in the past that would normally have been an office address. If the main office address changed, that would need to be reported to UKVI. It is important for sponsors to bear in mind sponsored workers can be interviewed at UKVI compliance visits and so their main work address needs to be kept up to date.
In the midst of the pandemic, UKVI created some new COVID-19 policies for sponsors which are still valid. The working from home section states that sponsored workers can work from home if it is due to coronavirus and that in such circumstances the change in main work address does not need to be reported.
But what does other UKVI guidance say about where the reason for remote working is not necessarily directly related to coronavirus and more to do with employers reacting to the general shift to home working?
Lack of clarity on policy for remote workers
Unfortunately, the current policy position is pretty vague. Sponsors understandably may be unsure as to where the line is drawn, such as when it comes to reporting duties. For example, if someone spends two or three days a week working remotely, or even a majority of their time working remotely for one week, does this need to be reported to UKVI?
It appears that sometimes UKVI’s inclination is that if someone can work remotely from home, logically, why do they even need to be in the UK at all? In some instances, there will be clear convincing reasons to explain why the worker should be physically based in the UK. For example, an IT company may wish to be closer to its customers in the UK but also to benefit from the cost-saving approach of remote working. Whilst the UK visitor rules do allow limited remote working, for some the visitor category is unsuitable due to restrictions on payments from UK sources and limits on activities in the UK. Any blanket approach to dismiss remote working for sponsored workers in the UK is unworkable. Employers may well also be flummoxed by the lack of guidance where sponsored workers ask to/are required to work outside the UK.
Despite the absence of guidance directly addressing remote working; there is a tendency for the UKVI customer service teams, including its Business Helpdesk, to fill the void and to create policy by the backdoor. In doing so they generally adopt a conservative stance towards remote working. Nevertheless, organisations can take certain approaches, for example, when applying for a sponsor licence, to mitigate the risk of encountering additional scrutiny around remote working arrangements when dealing with UKVI.
In the absence of guidance explicitly excluding remote working, we think that sponsors can take a more generous position and infer that under the current sponsorship system remote working is permitted.
Complying with sponsor duties for remote workers
Sponsors need to think about how they can comply with their sponsor duties in remote working arrangements. Adequate virtual measures can be put in place to help, for example, tracking migrants’ whereabouts, absences and performance. Employers can provide a clear remote working policy, highlighting that migrants must take appropriate steps to notify them of relevant changes to ensure compliance with reporting and record-keeping duties.
Whilst the introduction of a visa specifically designed for remote workers (such as a digital nomad visa) seems doubtful; a fresh approach and clarification regarding sponsored workers working remotely may well be a step in the right direction. We expect UKVI to provide an update to its guidance on remote working in the near future and will keep you updated on what it means for your sponsored workers and compliance.