The civil penalty for employing a student migrant illegally is now a maximum of £20,000 per worker. So, if you are recruiting migrant students in the run up to the Christmas season, you will need to be extra careful this year.
Employers can partially protect themselves from a penalty if they correctly carry out “Right to Work” checks but the procedures changed on 14 May 2014 and these have a direct impact on student recruitment.
If you are considering employing migrant students, you must obtain proof of their immigration status (e.g. their passport or biometric residence permit). In addition, you must now ‘obtain and retain details of the term and vacation dates of the course the employee or prospective employee is undertaking’.
Do not exceed term time limits
This requirement has been introduced because, as is well known, students’ hours are limited to 20 or 10 (depending on their course of study) during term time whereas they are free to work full time in the vacations. The main difficulty is putting safeguards in place to ensure that line managers who roster shifts for overseas students do not allow their hours to creep over the term time limit. This involves communicating details of the term dates to them.
The limit is not based on an average of the total number of hours worked. Any hours worked over the limit in a single week will be unlawful and would lead to a civil penalty if discovered. The right to work checks would not help employers in this circumstance as they will have knowingly employed the student for too many hours.
The evidence of term dates should come from the education provider and be either from its website or official correspondence (including emails) sent to the student or the employer. Employers must make sure that they have the dates for the right course – sometimes term dates vary between courses. If the student is kept on after Christmas and employed in the next academic year, then evidence of the new year’s term dates will be required.
Specified documents have to be checked and copied before the start of employment. It is now compulsory to record the date of the check. If the checks are carried out after employment starts, the employer will have no defence against a civil penalty.
Repeat checks are now required when the employee’s visa expires instead of annually. The expiry date may be come up soon after appointment so employers should be careful to diarise these immediately so that they can carry out a new check before the expiry date.