UK: Immigration Law Update - December 2009

Temporary student workers under tier 4 - heightened risk warning for employers

If you employ foreign students on a temporary basis, it is important that you read this information.

Unlike tier 2 sponsors, tier 4 sponsors have been unable to use the Sponsor Management System (SMS) to issue electronic approvals (known as Confirmations of Acceptance of Studies) in relation to entry clearance applications for students. This has meant that educational providers which are approved and trusted sponsors have instead had to issue paper-based visa letters to prospective students and concern is growing that this temporary measure may have been subject to significant abuse.

Specifically there is growing anxiety amongst employers, educational service providers and genuine students that individuals may be applying to study courses solely in order to obtain a visa letter from a trusted sponsor which can then be used to secure entry clearance and enter the UK in order to work. In other instances there is concern that visa letters which have been issued to genuine students may have been intercepted, copied and sold on by unscrupulous agents and fraudsters abroad.

The review of tier 4 (see below) which has been ordered by the Prime Minister is designed in part to stem this abuse by reducing the numbers of students who are coming into the UK and restricting their right to work. The challenge faced by the government is how to do this without damaging the UK's standing as one of the world's leading providers of high quality education. It is expected that high numbers of desirable students would not come to the UK to study if they were unable to work on a part time basis. Many countries which are competing with the UK for high quality students do allow them to work.

In addition, it is expected that the Agency will embark on an aggressive enforcement drive which will see tier 4 sponsors being audited, inspected and their licences suspended if they have been involved, knowingly or negligently, in practices which may have allowed individuals to abuse the system. For instance, if they are relying on an agent overseas to recruit students and there is evidence that that agent has abused the system, the Agency will check how much control the sponsor had over the agent. If the sponsor failed to adequately vet and monitor the agent, they may be held to account.

It is also expected that enforcement teams will be carefully checking employees who hold tier 4 visas when they visit employers, either through planned review visits or during enforcement raids.

It is therefore essential to have robust systems in place to ensure that no student works for more than 20 hours a week during term-time and that, where full-time work is offered during vacations, adequate checking procedures are in place to ensure that the employer knows what the vacation dates are.

Checks to protect against illegal student workers

Consequently it is more important than ever that employers at risk of being targeted by individuals, who are seeking temporary work and are in the UK illegally, ensure they are protected. This is particularly relevant to employers who recruit high volumes of students and temporary workers in low skilled positions.

A student who is in the UK, but not undertaking a permitted course of study, is not permitted to work. Employers who employ such a person may be guilty of an offence under the illegal working sanctions contained in either section 8 of the Asylum & Immigration Act 1996 or section 15 of the Immigration, Asylum & Nationality Act 2006.

Employers will be able to establish a defence if the student employee presented to them prior to the commencement of the employment a document as prescribed in the Comprehensive Guidance for Employers on Preventing Illegal Working and they have also, in relation to students who were employed after 28 February 2008, maintained the defence through yearly follow-up checks.

What information should employers seek from foreign students in order to establish a defence?

To benefit from the statutory defence, the legislation simply requires that employers check and copy the original document (as specified in the Guidance). Specifically they should ensure that:

• the photograph is consistent with the appearance of the individual
• dates of birth are consistent across documents and correspond with the appearance of the
  individual
• expiry dates of limited leave to enter or remain have not passed
• the person is entitled to undertake the employment in question
• the document has not been tampered with, and
• where different names appear across the evidence provided, a further document has been
  obtained which outlines the reason for this (marriage certificate, deed poll; etc).

Do I need to perform additional checks on students?

Where a person possesses a tier 4 visa, there is no mandatory requirement for employers to carry out additional checks to establish that the individual is actually studying. Providing employers have followed in good faith the checking procedures outlined in the Guidance, they will be able to establish a defence if the student is not in fact studying in the UK.

From a corporate social responsibility and brand protection perspective, employers may however wish to conduct more detailed checks to satisfy themselves that the individual is studying a permitted course and is therefore legally entitled to work. Legitimate students should be able to produce documentation from their educational establishment which confirms their course dates and they are likely to be open to employers contacting their college or university to confirm their student status.

If employers do decide to undertake more detailed checks on individuals, such checks must of course be applied on a general basis in order to avoid falling foul of discrimination laws.

If students wish to work on a full-time basis during their vacations, then it would be wise for employers to seek formal confirmation from students of their course dates to ensure that full time employment only takes place during vacations.

If students are unable to provide such confirmation or the documents produced do not look genuine, employers should consider the students' position in further detail. Any action by employers in terms of investigation, suspension or termination of employment must of course follow employment legislation.

Please contact us if you would like a free copy of Penningtons' guide to lawfully employing migrant workers (including students). Our guide includes a checklist for managers to complete for each employee and potential employee, a guide on conducting checks and lists of acceptable documents. We also work in conjunction with HR teams to create and provide bespoke documentation and training for those who conduct the checks.

Central coordination of enforcement action

The UK Border Agency's enforcement and compliance teams generally work on a regional basis and often in isolation. This approach is of concern to a number of businesses which operate from sites across the UK. Often the central HR or administrative function of the business has clear policies and systems to ensure compliance with prevention of illegal working practices and employee records are also frequently held at a central location. Where businesses can demonstrate clear and compliant practices in this area and have clearly sought to minimise the risk of exposure to illegal working, it is important that the Agency takes a centralised rather than a regional approach, where possible.

Penningtons is currently working on a project to try and develop a system with the Agency to enable effective central coordination. If your business operates from a number of sites across the UK and a central approach would be beneficial to you, please contact us.

Tier 4 review ordered by Prime Minister

As has been widely reported, on 12 November 2009 the Prime Minister announced a review of the student visa system. Please click here (www.number10.gov.uk/Page21298) to view the full announcement.

The UK Border Agency has this month written to key stakeholders and one of the seven questions stakeholders have been asked to comment on is:

As mentioned above, currently foreign students are entitled to work up to 20 hours a week during term time and full time during vacations. They are also entitled to undertake work placements.

The Agency was due to report to the Prime Minister on 11 December.

Corporate social responsibility in the context of the immigration debate

At the International Bar Association's global immigration conference, held in London on 19/20 November 2009, Phil Woolas, Minister for Immigration, outlined the government's policy relating to circular migration.

Specifically, the government appears to be starting to recognise that some companies are implementing programmes designed to ensure that skilled workers, who come to the UK for assignment or training purposes, are discouraged from remaining on a permanent basis. A number of programmes include schemes to incentivise workers to return to their country of origin in order to use their skills and experience to assist in core development projects.

Penningtons' immigration team has been working with a number of corporate clients to ensure their immigration policies reflect the organisation's wider corporate social responsibility programme and measures include:

• restrictions on permanent and dependent transfers to the UK
• incentive schemes to encourage workers to return to their countries of origin once their
  assignment in the UK has been completed
• UK based training and skills programmes which are designed around the current lack of obvious
  provision for such programmes in the points based system
• exchange programmes including designing bespoke tier 5 sponsor schemes.

We are also working on proposals for government recognition of such initiatives, for instance:

• reduced application fees where:
• • assignment/training programmes fall within the company's wider corporate social
    responsibility policies
  • the company incentivises individuals to return to their country of origin
  • the company participates in growth projects within developing countries
• bespoke government approved skills transfer and training programmes
• enhanced sponsor services

If you are interested in joining us in our representations to the government to recognise and reward employers and educational establishments which have embraced corporate social responsibility policies, please contact Nichola Carter. Penningtons' immigration team offers reduced fee structures to corporate clients which have or wish to create such programmes.

Migration Advisory Committee publishes report on tier 1 - suggested removal of Master's minimum

The MAC has published its report on tier 1 and of particular note is the suggested removal of the current Master's degree minimum. The Committee has also recommended that points be awarded up to the age of 39 and where the applicant has been earning £150,000 a degree is not required. Please click here (www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/pbsanalysis-09/) to view a full copy of the report.

Tip of the month for sponsors - 6 January 2010, introduction of biometric processing for tier 2 in-country applications

The Immigration (Biometric Registration) (Amendment No 2) Regulations 2009 come into force on 6 January 2010. They introduce the requirement for tier 2 migrants to apply for biometric immigration documents and mean that from that date onwards all applicants applying under tier 2 of the points based system (including those applying to extend and those applying under transitional arrangements) will be required to apply in person for a biometric immigration document.

This means that in-country applications under tier 2 will no longer be able to be processed on a same day basis. It is currently unclear how quickly the process will take, but we expect that it will be impossible to complete tier 2 applications in less than five working days, during which time the applicant will be without his or her passport.

Plan ahead: if you have work permit employees who will be unable to wait in the UK whilst such applications are processed, consider switching them to tier 2 before 6 January 2010 (this can be done at any time and you do not have to wait for their work permit to be near to expiry). Also consider sending employees out of the UK for tier 2 entry clearance applications. Please do note, however, that a rush of applications is expected which may impact on processing times.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.