The Implications of Redundancy for Sponsored Workers, Part 2

Part 2: Alternative routes and immigration options for individuals 

Adam Cotterill explores the implications from a personal immigration perspective when a sponsored worker is made redundant. This part of the podcast discusses recommended steps the employee can take, including sponsorship with a new employer; alternative (sponsored and non-sponsored) visa routes, and practical tips on how to do this in a way which best protects the individual’s UK immigration status.

Transcript

Kevin: Hello, everyone. My name is Kevin Hunter, and I am the Marketing and Business development manager here at Doyle Clayton. Today, I'm joined by Adam Cotterill, a senior associate in our personal immigration team. How are you, Adam? Many thanks for joining me today.

Adam: I’m great, thank you Kevin.

Kevin: So, we're going to be discussing the implications of redundancy on employees who are sponsored workers. I previously sat down with your colleagues Liz Kynaston and Zahira Patel, where we spoke about the same topic, but looking at it from an employment and business immigration perspective. Today we're going to look at it from a personal immigration viewpoint. The first key point in my mind is the 60- day curtailment period, can you briefly provide an overview of what that is?

Adam: When a sponsored worker’s employment is terminated, there's a 60-day curtailment period, where an immigration application must be made by the individual within this period, if they wish to remain in the UK and avoid becoming an overstayer; that's the general term for somebody who is in breach of UK immigration law. That's important because being in breach of UK immigration law is a criminal matter for which a person actually may be prosecuted. Although we do rarely see this happening in practice, it's an important consideration.

The alternative option is for the individual to leave the UK - again, that will have to be within the 60-day period - and then apply for a new visa from abroad, known as entry clearance.

Kevin: So, when chatting with Zahira, she mentioned that the individual should remain in the UK when submitting a visa application, but is this just the case for when applying for a like- for- like Visa, i.e., a sponsored worker visa?

Adam: Yes, that's correct. So, generally speaking, where somebody's sponsored worker visa is coming to an end, so in this case, a person is made redundant, if they can find new employment with a new sponsor, they can make an application from within the UK to essentially continue on a sponsored worker visa. However, that might be different if they're entering into a different visa category, and that's obviously important for what we're discussing today because we're looking at the consequences for people who are made redundant and there isn't the offer of alternative sponsorship. In that situation, you'll need to check whether the visa category permits a person to make an application within the UK, and stay in the UK, without having to leave at all. Or whether they're required under the immigration rules to leave to make an application for entry clearance.

Kevin: OK, so the first decision to make is whether to find an alternative employer, who can offer the sponsorship, to apply for an alternative visa, or leave the UK.

Adam: Yes, that's correct. For many, obtaining your sponsorship is probably going to be the obvious solution for somebody who's already here working with that visa. However, those who are made redundant are probably going to have relatively little time to seek out, as well as go through the interview and onboarding process for a new job.

Also, take into consideration the fact that there are a large number of redundancies at the moment and this can be sector specific. Those who are looking for a new job will have to contend with an unfavourable job market and so the sponsorship will be even more difficult to find and secure

Kevin: So, for someone who finds themselves in that position where they want to seek alternative employment as a sponsored worker, but are struggling to find a new role, as you said, due to the difficult job climate at the moment, I presume the next best option is to source an alternative visa?

Adam: Yes, so without the prospect of finding a new employer willing to sponsor the individual, in the short period of time that they'll have to remain in the UK, they may have to look at alternative visa categories as a way to either stay in the UK or to return once they've been required to leave.

Kevin: The next question then is an obvious one: what are the available alternative visa categories and where may they be found?

Adam: I'm going to start with your last question, where can the visa categories be found? They're found in the black and white of the law in the UK immigration rules, which are available to everybody online, but these should always be read alongside the more detailed guidance. Visa categories are summarised on the Home Office website, known as gov.uk, and there's a tool on that website which allows somebody to identify their visa options after answering a number of questions. But there's a health warning that has to apply to that because often the Home Office website will oversimplify the rules , and so somebody in a more complicated situation can find themselves doing things which aren't necessarily correct. And that's why we always recommend that when somebody has used the online tool to check what their options are, that they then get that checked with an expert and/or they look at that alongside the more detailed immigration rules and guidance.

It's probably also worth saying that not all of the information is always up to date on the Home Office website. For example, details about newly created immigration categories or upcoming changes won't be published on the website. But we, for example, as immigration lawyers, will have known about these categories for a while, and it would be important to have that knowledge so that we can advise clients who may be in a position to take advantage of the new categories.

Regarding the alternative visas, there are many categories and types, the most relevant in the circumstances of those individuals who we're thinking about today, are those immigration categories which are based on a person's economic activity or prospective economic activity in the UK.

I'll start by talking about the skilled worker category. So, this is a category available to somebody who’s already in the UK as a skilled worker, where they found new sponsorship, of course this is something which Zahira and Elisabeth covered with you in that discussion in the earlier podcast, so I won't go into any more detail talking about this category.

The second category I'd like to talk about is the scale up visa. This visa will be applicable to somebody where they have a confirmed job offer to work for an approved scale up business; now that's a business recognised by the Home Office on the basis that the business has experienced significant growth in turnover or in employee headcount. Similarly to the skilled worker category, it will require a certificate of sponsorship from the sponsor, i.e., the business, and so it’s a category that won’t probably be relevant to an individual who doesn’t already have a job offer, like those people who we’re thinking about today.

Next is the innovator founder route, which is going to be more relevant to the people we're talking about today. This is a route that was launched, or will be launching, should I say, on the 13 April 2023. It replaces the startup and innovator routes which will close on the same date. So, at the time of recording, we're only a few days away from the day on which this new route comes into force, and so I won't go into very much detail, other than to say that the innovative founder route is almost identical to the old innovator route, save for one main difference, and that's that an applicant will not be required to show a minimum cash investment. Now, the reason for the change, and why the visa categories have been relabelled, is that the old categories weren’t fit for purpose and this new innovator founder route is intended to offer greater access and flexibility for those with a genuine proposal for an innovative business, and sufficient funds to deliver it.

Some key points about the category, the first is that the individual who wants to enter into this category must first obtain an endorsement, and that will be from an endorsing body which backs their business idea. Who are the endorsing bodies? Well, they are bodies which consist of experts who've been approved by the Home Office and who sit in organisations. There are a number of them, and which body you apply to will depend on your particular circumstances.

The second key point is the £50,000 minimum funds requirement. As mentioned earlier, that was a requirement under the old innovator route, but it's not applicable here.

And the third, and most important, point about this route, and is different from the two previous categories, is that visa holders can undertake secondary employment whilst also running these businesses

The fourth category I'll talk about is the global talent category. This is probably going to be the most significant visa category for those who are highly skilled in the UK, and it's a category open to individuals who are considered as leaders, or potential leaders, previously known as exceptionally talented or exceptionally promising individuals, in their particular field. For immigration purposes, the Home Office have subcategorised these into areas of academia and research, arts and culture, and digital technology, each of which have their own independent, but Home Office appointed, endorsing bodies, which comprise a panel of experts in their relevant field who assess applications based on the endorsing bodies’ own published criteria. So, there's an element of subjectivity when somebody makes an application under this route, and that's why it can make it more difficult and certainly make the application far more involved in terms of its preparation. It's also important to note for this category that the application process is in two stages. The first is that the application is made to the endorsing body. and then if the panel are in agreement that the application has demonstrated their talent by meeting their relevant criteria, the individual may then make the visa application, which is the second stage in the two-stage process.

The reason why this visa category is particularly relevant in the current climate is that we're seeing large numbers of redundancies in the IT and tech sector, and so many of those are naturally drawn to the global talent visa category as it has an endorsing body, which was previously known as Technation, but it's also undergoing change and will be relabelled. Again, it’s about to be launched and the Home Office haven't yet released details, but the principle is the same; they'll apply to an endorsing body and if they're able to meet the criteria, they'll be granted a visa on the basis that they are considered leaders, or potential leaders, in their field.

In addition to the economic visa categories, they're also non-economic visa categories, which may be relevant; so, I'll just talk through some of those now. The first, maybe the most obvious, is the family route; these are applications made under the immigration rules on the basis that somebody has a partner in the UK who is British or settled, or they are the parent of a British child or a child who's been here for a number of years, such that they would qualify on this basis as their parent.

The second category I want to talk about is the high potential individual visa category. This is for individuals who have received a degree from a top-rated university, as recognised by the Home Office, and the Home Office publish a list of those universities on their website.

The third I want to mention are visa applications or categories based on a person's nationality. These can include the ancestry routes, the BNO routes, which stands for British National Overseas, Youth Mobility worker, and applications can also be made under the EUSS, which is short for the European Union Settlement Scheme. I've just listed off those visa categories because for many people they won't be relevant at all, and they depend on a person's specific circumstances. For those European nationals who haven't already applied under the EUSS, but were resident in the UK before the 31 December 2020, they can make a late application, so that's one to consider if they are European.

It's also worth noting that the skilled worker route is part of a wider category called the Points Based System. There may be some circumstances where the skilled worker is the main applicant in that particular category, and their partner also has immigration status under the skilled worker category, as a skilled worker dependant. It may be possible where the main applicant is becoming redundant, for them to switch and become a dependant themselves, if their partner is also in employment in the UK and can sponsor them.

What these categories serve to illustrate is there are very many different immigration categories, far too many to mention here, and they're all circumstance specific. The main take away is that individuals need to fully understand their options.

For example, there may be more complicated circumstances where a person may need to consider applying for a short-term visa, in order to provide a stopgap until they become eligible for a longer term visa. That's a simple example, but it demonstrates how you need to take a person's individual circumstances to fully appreciate what the options are; whether they should remain in the UK or leave.

Kevin: So potentially there are a lot of visa options available. In your view, how quickly should a person look into alternative options?

Adam: For someone who decides they want to remain in the UK and make an application for permission to stay before the end of the 60-day curtailment period, they'll need to start the process of looking into their immigration options as soon as possible. It is recommended that alternatives to sponsorship be explored early on, and alongside any efforts to secure new sponsorship. Each visa category has its own requirements and so it’ll be entirely the responsibility of the individual working alongside an immigration expert or lawyer, if they have one, to demonstrate this and to prepare the necessary evidence within the correct time scales.

This will likely be a very different experience for those who had previously been sponsored by their employer on a work visa, who may have done much of the planning and leg work for the visa. So, time to understand the process and prepare a visa application will be key if an application is to be made from within the UK.

Kevin: So, time is obviously a key factor, but what are the important things to consider when looking into alternative categories?

Adam: So, the starting point is the individual circumstances and their overall objectives, as this is going to determine the visas which are relevant and those visas which are not. It's the job of the personal immigration lawyer to familiarise themselves with the person's background and objectives, and assess the requirements of the various visa categories against these to see if they are visa-fit. If a person is doing this themselves, they'll need to quickly familiarise themselves with the ins and the outs of the visa categories. This exercise can result in more than one option, or none at all.

In other cases, it might not be clear cut. So, for example, a visa category may not be an option now, but may be later on, or there might be a particularly high risk of it being denied, meaning that it's a borderline case. Where there's more than one option, or where someone may be still weighing up to make a fresh visa application, keeping sight of the overall objectives and personal priorities will help. One visa category may be preferential in one regard, but less attractive in another. For example, one visa may offer flexibility and be more straightforward in terms of meeting the requirements, but may not offer a clear pathway to settlement, otherwise known as permanent residence, which is often the most important thing for somebody who is here in the UK on a temporary work visa.

And, so, for this reason, it's going to be important to understand, not only the requirements of each visa category, but how the visa category fits into the wider context by looking at wider considerations. Pertinent questions may be, what are the conditions which are attached to that visa, which means what can they do on the visa and what can't they do? Does the visa category offer a route to settlement? Does it permit dependants to be included in the visa category, for how long, and on the same terms? And can the application be made from within the UK or from abroad?

Kevin: It sounds like there are a lot of factors to consider there, at various levels of complexity, is it therefore necessary to instruct an immigration expert?

Adam: That's a really good question and I think it's going to be a different answer for different people. So, if a person's visa process has previously been handled, to a larger or lesser extent, by their employer or their sponsors’ lawyers, and it’s the first time that they’re going to be thinking about or engaging with the UK immigration system, it’s going to be quite daunting for them; so, instructing an immigration expert may be something could benefit. Experts as well are going to probably help speed up the process, as they're going to be more acquainted with the immigration rules, and then be able to make a quick assessment of which category a person may fit into if a person is looking for alternative routes, if they can't find an alternative sponsor for them to remain in the skilled worker category.

Engaging with an immigration expert early on can avoid the stressful and costly consequences of getting it wrong, something which can be much harder to rectify if a mistake is made or discovered later on. Also, it's worth bearing in mind that visa applications aren't just a case of filling out a form, evidence is also required, usually in ways specified by the rules. A seemingly small mistake in the process, on an application form or in the provision of incorrect evidence, may result in a person's immigration status being put in jeopardy. One example is by ticking the wrong box on an application form may mean that they failed to meet the immigration rules and their application could be rejected, and they could ultimately be made an overstayer, as a result. As well as checking a person's eligibility, an immigration lawyer can offer technical expertise in the preparation and processing of an application, to prevent things like this going wrong.

Another important benefit of having an expert to advise is that they can look at the long-term immigration strategy, which an individual on their own is unlikely to do, and that could colour what approach they take and what visa category they apply for.

Visa applications are submitted day in, day out, without the support of lawyers, but in a situation where the stakes are already high, obtaining advice early on to understand their immigration position and visa options is likely to be invaluable.

Kevin: So, to sum up, what are the key points you feel listeners should take away from this discussion?

Adam: The key to understanding and successfully engaging with the UK immigration system is all in the planning. And in a time-sensitive situation, those impacted by a redundancy should act quickly to understand and protect their position, and that includes seeking legal advice and assistance when necessary.

Kevin: Amazing, well, thank you Adam. This has been a very interesting and informative discussion. I really appreciate the time today. And as always, if you would like any advice regarding anything we've discussed during the session, please contact our personal immigration team, details of which you can find on our website, www.doyleclayton.co.uk.