UK: Immigration Law Update

Last Updated: 2 March 2010
Article by Nichola Carter

Student employees – new restrictions on employment coming into force on 3 March 2010

On 10 February 2010 a Statement of Changes to the Immigration Rules was laid before Parliament which is due to come into force on 3 March 2010. The changes will:

  • halve the amount of time students studying below degree level (except students on foundation
    degrees) can work during term time from 20 to 10 hours a week;
  • ban students who are studying on courses of six months or less from bringing their dependants
    with them to the UK; and
  • ban the dependants of students studying below degree level (except students on foundation
    degrees) from working unless they qualify to work in their own right.

Businesses which employ foreign students should follow developments carefully and be ready to adopt appropriate changes to recruitment and hours-monitoring procedures.

These changes will only affect those who apply for leave to enter or remain under tier 4 on or after 3 March 2010.

We have asked UKBA if visa stamps will confirm whether the student may work 20 or 10 hours a week during term time to assist employers. Our contacts at UKBA have indicated that they are currently considering this issue and, if possible, that the conditions appearing on Identity Cards for Foreign Nationals (ICFN) will specify the number of hours of work that are permitted. As soon as we have a response and any further information, we will update our news page (http://tinyurl.com/yeqy3ba ).

We have a 'note for employers' which central HR functions may wish to circulate to store managers and other interested parties to keep them abreast of these changes. If you would like a copy, please contact us as outlined below.

Changes to the English language criteria will also come into effect on 3 March. Click here (http://tinyurl.com/yds7fyo ) for a copy of the information published by UKBA on these changes.

'Highly trusted sponsors' and restrictions on work placements for standard sponsors

On 6 April 2010 the Government will introduce a new category of sponsor known as 'highly trusted sponsors'. In the first instance, publicly funded education institutions will be treated as 'highly trusted' but removed from this category should UKBA judge that they do not meet the criteria. Privately funded institutions will need to apply to UKBA for this status.

From 6 April only highly trusted sponsors will be able to offer courses at National Qualifications Framework Level 3 (and its equivalents) and 'courses with work placements below degree level'. We are seeking clarification from UKBA as to exactly what this means.

Internships - advice to businesses

UKBA is considering how best to facilitate graduate training schemes, internships and skills transfer programmes within the points based system. In the meantime in relation to internships, it is important that businesses note the following:

  • where a non-resident wishes to undertake a period of internship with a UK employer, on a paid or
    an unpaid basis, the individual must have specific immigration permission to undertake the
    internship;
  • visitor status, including business visitor status, does not provide such permission;
  • it is unlikely that in the majority of cases the employment of interns via tier 2 would be considered
    to be lawful by UKBA, even where the employer is willing to pay the intern the salary rate which is
    outlined in the Code of Practice. This is because before issuing a Certificate of Sponsorship
    (CoS) the employer is required to conduct a genuine test of the resident labour market via a
    milkround and must visit at least three UK universities. The sponsor guidance confirms that the
    internship may only be offered to a non-resident and a CoS issued if there is no suitable settled
    individual available to fill the vacancy. It is difficult to imagine many scenarios where a sponsor
    would not be able to fill an internship vacancy with a suitable settled student. Where, as is often
    the case, a sponsor has already identified a non-resident candidate for an internship role and that
    candidate is subsequently employed in that role, clearly it is going to be an uphill struggle to
    persuade UKBA on a subsequent assessment visit that a resident labour market test was
    'genuine'. Employers must ensure the candidate is employed by way of a lawful route;
  • a number of schemes operate to assist employers in relation to employing non resident interns. If
    interns are working under a visitor or a non-employment permitted status, the employer may be
    fined up to £10,000. Employers who recruit interns under a tier 2 Certificate of Sponsorship and
    who cannot clearly demonstrate to UKBA as and when they are audited that they have tried and
    been unable to recruit suitable residents risk having their licences downgraded, suspended or
    even withdrawn.

Should you require further information on internships, work placements, skills-transfer or any other short-term routes, please contact us.

Conflicts between employment and immigration law

Emerging from the points based system are a number of instances where employers are faced with a clear conflict between employment and immigration law.

Where there is clear and tested case law, employers would be wise to follow it. For instance, where a tier 2 employee is to be made redundant, UKBA guidance dictates that before offering the employee a new role, the employer must advertise the new position in order to try and find a suitable resident worker. Employment case law is clear however that an employer who does this is likely to find themselves on the wrong end of a claim.

In relation to UKBA's requirement under tier 2 that employers must offer roles to 'suitable' resident workers, employers faced with applications from a resident and a non-resident worker who are both 'suitable' for the role would be at risk of a claim from the non-resident worker if they decided to recruit the resident worker only because of their nationality.

Employers are advised to continue to apply the rules of transparency and fairness when recruiting and dealing with employees, both residents and non-residents and, most importantly, to keep clear notes recording the basis for decisions.

Whilst we would not bet on it, we feel strongly that a High Court judge, deciding whether or not the suspension of a sponsor licence was lawful or not, would not be inclined to penalise an employer that chose to follow tried and tested employment case law in its employment and recruitment procedures over unclear UKBA guidance.

UKBA has been asked on a number of occasions to produce guidelines for employers caught up in a conflict between employment and immigration case law and has so far declined to provide such assistance.

Does a sponsored migrant have to leave the UK upon the termination of employment?

There is no requirement for a migrant who is sponsored under tier 2 or tier 5 of the work permit scheme to leave the UK at the end of their employment.

Providing the migrant does not breach the conditions of his leave, he may remain in the UK until that leave expires, he switches immigration category or UKBA curtails the leave. UKBA is likely to curtail the leave of migrants who have more than six months remaining where the sponsor has notified them either via the sponsor management system or through the Notification of Premature End of Employment form (for those on work permits) of the end of the employment. If UKBA curtails the migrant's leave as outlined above, there will be sufficient time allowed for the migrant to bring an end to their affairs in the UK (usually the leave will be curtailed to 28 or 60 days) and they may in some cases have the right to appeal the decision to curtail leave.

Migrants whose employment has been terminated should ensure that they:

  • do not undertake alternative work (including secondary and supplementary employment) as this
    would be a positive breach of the conditions of stay as such work would not be permitted;
  • do not leave the UK and seek to re-enter under the work permit;
  • ensure that UKBA has their current address (to avoid leave being curtailed without their
    knowledge).

It is neither a criminal nor an immigration offence for migrants to remain in the UK as described above and they cannot be banned from the UK in the future.

However, the position is markedly different for those migrants who are subject to the Biometric Immigration Document regime (which includes students and now, with effect from January 2010, tier 2 migrants). They are now being issued with what are known as Identity Cards for Foreign Nationals (ICFN). As a result, they have a duty to notify UKBA if they know or even suspect that they no longer qualify for leave under the rule governing their current leave. Failure to so notify the UKBA enables UKBA to 'disregard' any application by the person for leave to remain or to cancel or vary his existing leave.

Sponsor licence suspensions

UKBA is currently in the midst of a licence suspension drive which is, in many cases, causing substantial disruption and anxiety to students and employees and financial losses/damage to reputation for sponsors. We have been instructed by a number of establishments whose licences have been suspended unlawfully and we have developed a fixed-fee process to assist sponsors caught up in this by carrying out a rapid-response diagnostic assessment to test compliance with the sponsorship rules and, where appropriate, initiating our tailor made negotiation process to secure a speedy reinstatement of the licence. We have also joined forces with one of the UK's leading sets of barristers to ensure that where necessary legal redress can be initiated quickly for all sponsors who are subject to unfair suspension action including a claim for legal costs and other losses.

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.

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