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:
- does not have valid leave in the UK; or
- has leave which is invalid, has ceased to have effect (e.g. was curtailed, revoked, cancelled, expired or otherwise); or
- 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.