As the governments around the world continue to battle the outbreak of the Corona Virus (Covid-19), people’s lives have been turned upside down, with many livelihoods affected, especially as most businesses and work is at a standstill due to the lockdown.
The UK government has tried to assist the general public in dealing with the effects of this lockdown, and we wish to highlight those measures that may be helpful, specifically for migrants on various visas (i.e. those not already holding ILR or British Nationality). There may be several options for those already settled and British Nationals, including making an application for Universal Credit; the two main avenues of help available can be classed under two areas:
1. Furlough -(Job Retention Scheme) for working Migrants
The government’s furlough scheme, also known as the Coronavirus Job Retention Scheme, went live on the 20th of April 2020. Under this scheme, if your employer has no work for you to do, your employer might be able to keep you on the payroll on temporary leave instead of making you redundant. This is known as being put ‘on furlough’. The scheme is currently programmed to run for four months, covering from the 1st of March to the end of June 2020. Please note that if you are furloughed, you cannot do any work (even part-time) for your employer.
Under this scheme an employer can reduce staff salary costs and avoid making staff redundant, by furloughing employees and applying for a grant to be paid by the state of up to 80% of their usual monthly wage costs, up to £2,500 a month. The employee must agree to be put in furlough (which is not really much of a choice, as in most cases the only alternative is being let go under redundancy) and the employer can also choose to top up the remaining 20% of the salary if they are able to (although this is not mandatory).
It is important to note that this the scheme does cover all workers, including migrant workers, who were on (Pay As You Earn) PAYE payroll scheme on or before the 19th of March 2020. Also this, as the government guide clearly states, is not a public fund i.e. no employee will be getting money from the government, but rather your employer will be getting support to pay their staff. Thus, it is fine to be furloughed even if your BRP card says “No Recourse To Public Funds,” as according to the government published guidance : ( emphasis added)
“Employees can be on any type of employment contract, including full-time, part-time, agency, flexible or zero-hour contracts. Foreign nationals are eligible to be furloughed. Grants under the scheme are not counted as ‘access to public funds’, and you can furlough employees on all categories of visa.”
As a UK immigration lawyer, I appreciate that for some British Nationals, being Furloughed or made redundant raises concerns about meeting the Minimum Income Requirement to renew your / your partner’s visa. So far there has been no clear guidance on how the government intend to deal with the financial requirements under the current circumstances, and we continue to advocate that the government should at least suspend these requirements. However, for now one would be best advised to assume the rules continue to operate as usual and should contact a UK Immigration solicitor with regard to their situation if affected.
Example: Mr John Smith, a British national and the sole bread winner of the family, works as a hotel chef earning £20,000. He is married to a Russian National and they have two British children; the Russian National has a Spouse visa, which is due to expire on the 15th of May 2020, and thus needs to be renewed soon. If Mr Smith is made reductant or only paid 80% of his salary, which will reduce it to £16,000, he will no longer meet the current income threshold of £18,600PA.
In the example above, such personscould apply for a visa under Human Rights (which is not ideal, as this would shift his wife from the 5 year route to ILR to the 10 year route) or, a better option would be to ask his employer to top-up the remaining 20% for the time being, to ensure that he meets the income threshold with his current income. Consult your UK Human Rights lawyer for more specific advice is faced with such situation.
2. Accessing Public Funds:
Unfortunately, in this hard time, not everyone is covered under the above Job Retention Scheme e.g. those that were not working under PAYE before the cut-off date, newly self-employed or those whose employer has actually made them redundant after writing off the business as not viable. These people are left with only one option; applying for Public Funds under Universal Credit, which presents a problem for migrants, as the majority of visas come with a strict ban on receiving public funds.
The general rules (Section 115 of the Immigration and Asylum Act 1999) are that a person subject to immigration control is not entitled to Public Funds, and this includes things like:
attendance allowance • carers allowance • child benefit • child tax credits • council tax benefit • council tax reduction • disability living allowance • housing and homelessness assistance • housing benefit • income-based jobseeker’s allowance • income related employment & support allowance – ESA (IR) • income support • personal independence payment • severe disablement allowance • social fund payment • state pension credit • universal credit • working tax credit.
It is worth noting that a person who is ‘subject to immigration control’, e.g. has a Spouse visa, is not considered to be accessing public funds if it is their partner who is receiving the funds they are entitled to,
For Example: if you are a migrant married to a British national, your spouse can still claim public funds such as child benefits, without you falling foul of the rules.
However, if the claim is made jointly, they would fall foul of the rules, which is most unfortunate as the majority of claims, except for child benefit, now fall under the new Universal Credit Scheme, which must consider every member of the family, with no possibility of those with a visa applying for a claim alone, unless they are single parent.
Thus if you and your spouse need public funds and the claim cannot be made by the person who is not subject to immigration control alone, then you would need to apply for the condition of “ no recourse to public funds” to be lifted before you submit a joint claim.
Applying for the Public Fund ban to be lifted
The general ban to public funds has always had an avenue to apply, under exaptational circumstances, for this condition to be lifted, and in the past this application has been made by sending representation through your UK Immigration Lawyer, a Charity Organisation or local Authority (Social Services), together with relevant evidence, to the Home Office.
However, since April 2020, perhaps in acknowledgment of the hardship the current crisis is causing, the government has established a way to apply online for a change of conditions of leave to allow access to public funds, if your circumstances change, for migrants who already have leave granted on the basis of family or private life and whose financial circumstances have changed. This can be now be submitted via Online Form.
NB: you can only use this form if you are currently here on a settlement visa on the basis of your family or private life. Thus if you are on another sort of visa, or are currently looking to apply for a settlement visa under the 5 or 10 Year Family and Private Life routes, you would still need to make representations in the previous way.
It is critical to point out that ,while the method of application has now been updated, the eligibility criteria remain the same i.e. they are very strict and Public Funds will only be granted where there is evidence of potential destitution or particularly compelling reasons relating to the welfare of your child(ren) on account of your very low income.
Please note that, according to the government guidelines, to qualify for an amendment to your visa the public fund ban will only be lifted if:
- you’re destitute
- there are particularly compelling reasons relating to the welfare of your child on account of your very low income
- there are exceptional circumstances in your case relating to your financial circumstances
Please also note that there is a strict definition of what constitutes a person being destitute, which under government rules is a person who:
- does not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met), or
- has adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs
Thus, such applications should be accompanied with weighty evidence, including financial documents, any medical records and any recent letters from the Local Authority or a registered charity, e.g. Shelter, confirming that support is being provided.
Once the application, free of charge, is submitted, the applicant will be informed by letter or email of the decision, which may require biometric enrolment. The Home Office will also issue a new biometric residence permit for a successful applicant, which one would assume would be without the comment of “no public funds” printed on the back.
Unfortunately, while the move by the government to simplify the process and avail help to migrant families who would otherwise face destitution is a welcome one, this process is far from quick, so with no published processing time and Visa centres currently closed for Biometric enrolment, it could potentially be months before the issuance of the new BRP, and then another long wait when applying for Universal Credit.
Also, while it may not make much difference for affected migrants currently facing destitution, once should note that getting public funds may affect your visa long term, with the government clearly underlining that if you are currently under the 5 year partner/parent route (UK Spouse Visa) you will potentially have to wait twice as long to qualify for Indefinite Leave to Remain:
“If you’re accepted you would be considered to have moved on to the 10 year route to settlement and as such any future applications for leave will be considered under the 10 year route. However, when you come to reapply if you feel that you again meet the criteria under the 5 year route you should be aware that any leave you had previously accumulated under the 5 year route will not count towards your new 5 year period.”Government Guide
The Corona Virus continues to affect people in various devastating ways, and hopefully we are now getting over the worst, with the current daily infection figures going down.
We note the government pledge that:
The Home Office and its Ministers are very clear that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control.
We as UK immigration Lawyers continue to advocate for more help for migrants, including the suspension of the Spouse Visa Income Threshold. Meanwhile, please ensure that you remain within the current immigration rules, as we aim to keep you updated with the various changes as the government publish them.
Cross Border Legal Solicitors – still here for you – available online from the UK to any part of the world
For those in the UK, unless you are one of key workers or cannot work from home, Stay Home and Stay Safe.
Although Cross Border Legal Solicitors are currently not seeing clients physically at our offices in Leicester, we will continue to avail our services to persons from any part of the world, especially for those in the UK looking to extend their visas, and are contactable via phone, WhatsApp, WeChat or Facetime during normal working hours.