Consider immigration issues early
Once a potential employee has been identified, it is important to quickly open a dialogue about any immigration issues. Graduates from UK institutions may face varying immigration requirements depending on: where they are from; what and where they have studied; and what role they will be taking on. Graduates from outside the UK may also face additional requirements. Time needs to be allowed in order to consider the individual circumstances so that, where required, the appropriate entry clearance or leave to remain application can be made.
Whether recruiting just within the UK or from overseas as well, it is worth ensuring that your advertisements of graduate roles, or indeed any roles, comply with the Resident Labour Market Test (RLMT). There are special requirements for advertising new graduate jobs and internships that are more onerous than the usual requirements for most roles. Although the RLMT is not always required, for instance due to some international graduates being exempt, ensuring your advertisements are compliant at the outset will avoid delays later on should you wish to recruit someone for whom the RLMT is needed.
To read our reminder on the requirements for job advertisements, please click here.
Do not discriminate
Although immigration requirements should be considered early, be careful about considering them too early. As we discussed in our April update, if you place a bar on anyone who needs a visa from applying for roles, including graduate roles, you may leave yourself open to discrimination claims. This is especially the case as some international graduates from UK institutions are exempt from the RLMT if switching into Tier 2.
Additionally, employers should ensure that their job advertisements do not include any discriminatory wording. To read more on avoiding discrimination in a job advertisement, please click here.
Preserve a student’s status
To meet the Post-Study Work exemption to the RLMT, a migrant student must, amongst other requirements, have completed:
- and passed a UK recognised Bachelor's or Master's degree (not a qualification of equivalent level which is not a degree);
- and passed a UK Postgraduate Certificate in Education or Professional Graduate Diploma of Education (not a qualification of equivalent level); or
- a minimum of 12 months study in the UK towards a UK PhD.
Further, the migrant student must have studied at a UK institution that is a UK recognised or listed body, or which holds a Tier 4 sponsor licence.
If you identify a graduate migrant student who qualifies for the Post-Study Work exemption to the RLMT, you should make sure they do not create potential problems for themselves by leaving the UK before their leave expires. This is because they may then have difficulty returning to the UK, even if their visas are still valid, as they will have no course to attend.
For those migrant students who do not qualify under the Post-Study Work provisions, for instance, because they are applying from overseas or they studied at a private college, employers will need to first satisfy the RLMT.
Comply with your sponsorship duties and obligations
If you sponsor migrant workers, it is vital that you maintain your sponsor licence. In order to do so, you must meet your sponsorship duties and obligations, which cover how you deal with both migrants and organisational issues. Another key requirement is ensuring that you do not have any illegal workers. This is particularly complicated when employing holders of student visas. The work rights of students depend on: when their visas were granted; where they study; at what level they study; and whether it is term time, holiday time, or after course completion.
On top of this, broadly speaking, Tier 4 Students’ work rights mean they may not fill a permanent, full-time vacancy. There is an exception to this for those who are graduates of a recognised body (listed learning institutions which can award degrees) or a publicly funded institution while their Tier 2 (General) application – which is supported by a Certificate of Sponsorship assigned by you – is being considered. Effectively, this rule makes it all the more important to ensure Tier 2 applications are made before permanent graduate work commences, or, for some graduates, approved even before such work starts.