Prevention of illegal working
- restrictions on employing international students
With the current surge in UKBA action against tier 4 sponsors it
is imperative that employers in general, and tier 2 sponsors
specifically, review their systems and processes. This is to ensure
that they comply with their obligations under the Prevention of
Illegal Working legislation and under their tier 2 sponsor licence
Prevention of illegal working
Employers should ensure that they do not fall foul of the
Prevention of Illegal Working legislation by employing a migrant
1. does not have valid leave in the UK; or
2. has leave which is invalid, has ceased to have effect (e.g.
was curtailed, revoked, cancelled,
or otherwise); or
3. has leave which is subject to a condition preventing them from
Employers found to be employing such a person may receive a fine
of up to £10,000. A recent request for information under the Freedom
of Information Act showed that UKBA has issued 5,531 civil
penalties, with a total value of £53,097,500, in the last three
If the company holds a tier 2 sponsor licence then UKBA may, as a
result of the fine, downgrade, suspend or revoke the sponsor
licence. The impact on the company's reputation, business and
employees could be far reaching.
To safeguard against this, the employer should ensure that all
staff members in charge of recruitment or Human Resources read the
latest UKBA Comprehensive Guidance on Prevention of Illegal Working
and are carrying out the checks in accordance with the guidance.
Furthermore, a check of employee files should be carried out to
ensure that the contract and documents on file reflect the
conditions imposed on the employee's stay in the UK e.g. migrants
with leave in the UK as students are not permitted to fill a
permanent full-time vacancy. Therefore employers should not be
offering a student a full-time permanent contract of employment.
Similarly a migrant with leave in the UK as a student often has
restrictions on the number of hours they can work during term-time.
The number of hours that they are permitted to work is quite clearly
stated on their visa endorsement/Biometric Residence Permit e.g. 20
hours per week. Therefore the hours stipulated in the contract of
employment should reflect this. For a copy of UKBA's Comprehensive
Guidance on Prevention of Illegal Working, please click here.
Restrictions on employing international students
The Government's changes to the working rights of international
students were implemented on 4 July 2011. Employers must be extra
vigilant in ensuring that they are checking all employees' right to
work documentation and, in particular, any restrictions a student
may have on working in the UK.
Employers should check the endorsement in the student's passport
and/or Biometric Residence Permit which will specify whether the
student is permitted to work, and the maximum number of hours they
can work during term-time.
The changes brought in on 4 July 2011 impose different work
restrictions depending on who the tier 4 student is sponsored by and
what course they are studying.
To summarise - a tier 4 student who applies for leave on or after
4 July 2011 will have the following work restrictions imposed:
- 20 hours per week during term-time and full-time during
- they are on a course at degree
level or above and are being sponsored by a Higher Education
- they are on a short-term study
abroad programme in the UK and are being sponsored by an
- 10 hours per week during term-time and full-time during
vacation periods if:
they are on a course below degree level and are being
sponsored by a HEI; or
- they are studying at any
academic level and are being sponsored by a publicly funded further
A student that applies for leave as a tier 4 student on or after
4 July 2011 cannot work during term-time, or during vacation
periods, in any circumstances other than those
Students with existing leave permitting them to work will not be
affected by these changes. However, when the student applies for new
leave they will be subject to the new rules and may have their right
to work in the UK removed. In view of this, employers should check
that their employees continue to have the right to work in the UK.
In any case students must not fill a full-time permanent
vacancy (other than on a recognised Foundation Programme or
as a Student Union Sabbatical Officer).
Before employing a migrant student, employers must ensure that
the necessary right to work checks have been carried out, and
sponsors may want to obtain confirmation from the student's
educational institution of the student's term-times and vacation
If employers are unclear as to whether a prospective employee has
the right to work in the UK, they can contact the Employer Checking
Service. For further details please click