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 (where applicable).

Prevention of illegal working

Employers should ensure that they do not fall foul of the Prevention of Illegal Working legislation by employing a migrant who:

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,
    expired or otherwise); or

3. has leave which is subject to a condition preventing them from accepting employment.

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 years.

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 vacation if:

      - they are on a course at degree level or above and are being sponsored by a Higher Education
        Institution (HEI); or

      - they are on a short-term study abroad programme in the UK and are being sponsored by an
        overseas HEI.

- 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
        education college.

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 listed above.

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 dates.

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 here.

Tier 2 allowances

According to the current tier 2 sponsor guidance (version 4/11) a reduction in a tier 2 migrant's salary, including a reduction in any allowances that were included on the Certificate of Sponsorship, will necessitate a change of employment application. This may, in certain instances, require a fresh resident labour market test to be carried out. This is so UKBA can determine whether the migrant worker is continuing to be paid at least the appropriate rate.

It has been put to UKBA that this requirement is too onerous on employers, as a reduction in allowances does not necessarily mean that the salary package will fall below the minimum rate set by UKBA for a specific role. It has been proposed to UKBA that, where the gross salary package continues to be above the minimum set by UKBA, the reduction should be permitted as a technical change. We will keep you updated on any further developments on this.  

Consultation on employment-related settlement, tier 5 and overseas domestic workers

As reported in our news item of 21 June 2011, UKBA has launched a consultation into employment-related settlement, tier 5 and overseas domestic workers.

The consultation focuses on breaking the link between those coming to work and those settling in the UK permanently. The closing date for submissions is 9 September 2011. Further details can be found in our full news item. Please click here.

As part of the consultation, the Migrant Advisory Committee (MAC) has been commissioned by the Government to consider and provide advice on the following questions:

- what would be the economic effects of restricting or removing settlement rights in tiers 1 and 2
  and/or restricting leave to a maximum of 5 years?

- if settlement were to be restricted:

      - which economic criteria could be used to identify the most economically important tier 2
        migrants for settlement?

      - would there be merit in making allowances for specific skills or occupations as part of the
        assessment criteria, based on factors including strategic economic importance, provision of key
        public services, and ensuring that the UK attracts the top global talent?

Penningtons Solicitors LLP will be providing a response to the MAC consultation and would like to incorporate your views on the proposals. The deadline for submission of the responses to the MAC is 31 August 2011. If you have any evidence that you would like us to include please forward these to us as soon as possible. Alternatively, please forward your response directly to the MAC.

The MAC's letter and call for evidence can be accessed by clicking here. 

All-Party Parliamentary Group

On 6 July 2011, Nichola Carter, head of Penningtons' immigration team, attended the All-Party Parliamentary Group (APPG) on Migration at the House of Commons on business, global talent and UK immigration policy. The debate was attended by individuals from a range of public and private sectors and focused on the contribution made to the UK economy by skilled workers from outside the European Union.

In his conclusion to the debate, the chair, Jack Dromey MP, highlighted that three key issues had been put forward. Firstly, businesses in the UK need to make a better business case to the Government on the impact of the Government's decision to reduce net migration. In addition, all businesses, including those in the education sector, need to work together as they are all affected by the limits imposed on migrants entering the UK. Secondly, there should be an evidence-based approach put forward to the Government as immigration debates often do not deal with the day to day issues they face. This was highlighted especially in relation to small and medium sized businesses. Thirdly, the Government and businesses must ensure that negative language about immigration is avoided. 

Penningtons bolsters team with new hires

Penningtons' immigration team is delighted to announce the recruitment of two solicitors, Efun Chin and Sandip Sidhu, both of whom joined in June 2011.

If you would like to discuss any aspect of this update further, please contact:

                                   Nichola Carter                                                         Philip Barth