The rules around employing international students whilst they are still studying, the position when their course has finished and the steps needed to be able to retain them are complex. We consider these areas, the common pitfalls and how to avoid them!
The number of international graduates seeking to remain in the UK even in the midst of Brexit uncertainty is increasing. As a result, employers need to be aware of the rules surrounding employing them whilst they are still studying, on completion of their studies and on a long-term basis. Failure to comply with the rules may expose employers to civil penalties for employing an individual in breach of their conditions. In addition, when employers wish to retain students who have completed their course they may, if they do not hold one already, be required to apply for a Sponsor Licence.
Employing international students during their course
Not all international students (those from outside the European Economic Area (EEA) or Switzerland) are entitled to work while they are in the UK, but some are allowed to take limited employment if the conditions of their permission to study allow it.
A student who has been granted permission to be in the UK as a Tier 4 student and is permitted to work will have a clear endorsement in their passport or Biometric Residence Permit (BRP), which states that they are permitted to work and the number of hours of work allowed during term time e.g. 10 hours or 20 hours a week. A week for the purposes of assessing the number of hours a student works has recently been defined by UK Visas and Immigration (UKVI) as a fixed period to run from Monday to Sunday.
If permission to work is not stated in either the passport or on the BRP card the student is not permitted to work. Students who do have the right to work can work full-time during vacations. However, students are not permitted to fill a permanent full-time vacancy unless they are applying to switch into the Tier 2 route following the completion of degree-level study in the UK (see below). Short-term students are not permitted to work.
Retaining documents is key. In addition to retaining the standard Right to Work documents for students who have limited permission to work during term-times, employers must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed. They must also remember to diarise the expiry date of the student’s visa to ensure that they do not continue to employ them if they no longer have permission to be in the UK.
If a student is allowed to work, they cannot:
- be employed as a doctor in training (except on a recognised foundation programme);
- be employed as a professional sportsperson (including a sports coach);
- be employed as an entertainer;
- be self-employed (except where they are awaiting a decision on an application they have made for leave to remain as a Tier 1 (Graduate Entrepreneur) Migrant - this route will close on 5 July 2019);
- engage in business activity; or
- fill a full-time, permanent vacancy (except on a recognised foundation programme or where they are filling a post as a Student Union Sabbatical Officer).
Employing International Student when they have completed their studies
Students may work full-time after their course has ended, provided the conditions of stay permit work during term time and they have leave to stay in the UK. The period at the end of the course is considered vacation time. In this case employers will need to diarise the expiry of the student’s visa to ensure that they do not continue to employ them if they do not have permission to do so.
If, having fully completed the course, the student makes an application for leave under the points-based system before their existing leave expires, they will be permitted to work full-time, within the limits, until their application is decided. In this case employers will need to reasonably satisfy themselves that an application has been made before the student’s visa expired and obtain a positive verification notice from the UKVI Employers Checking Service to be able to continue to employ them.
If the individual stops studying before completing their course, they will no longer be entitled to work and will be in breach of their conditions of leave if found working.
Employing international graduates after their studies
Often, we are asked by employers how they can retain certain graduates or indeed employ graduates who may have applied to them at the end of their course of study.
In order to employ a student under Tier 2 of the Points Based System employers will need to hold a Sponsor Licence issued by the UKVI. This licence enables employers to employ not only those graduates who can switch from Tier 4 to Tier 2 of the points-based system but also employ other skilled migrant workers from outside of the UK and EEA.
Should an employer identify a student who they may wish to employ they will first need to satisfy themselves that that person can switch from within the UK from the Tier 4 visa category into Tier 2.
Currently the criteria is:-
The student’s last grant of Tier 4 entry clearance or leave to remain was to study at either:
- a UK recognised body or a body in receipt of public funding as a higher education institution from the Department for the Economy in Northern Ireland, the Office for Students, the Higher Education Funding Council for Wales, the Scottish Funding Council or any other provider registered with the Office for Students
- an overseas higher education institution to undertake a short-term study abroad programme in the UK
The migrant has:
- completed, or is applying for leave to remain no more than 3 months before the expected completion date for, a course leading to a UK recognised bachelor’s or master’s degree (not a qualification of equivalent level which is not a degree)
- completed, or is applying for leave to remain no more than 3 months before the expected completion date for, a course leading to a UK Postgraduate Certificate in Education or a Professional Graduate Diploma of Education (not a qualification of equivalent level), or
- completed a minimum of 12 months study in the UK towards a UK PhD
- studied for the course or period of research mentioned above at a UK recognised or listed body, or one which holds a sponsor licence under Tier 4 of the Points Based System, and
- studied, or is studying, for the course mentioned above during their last grant of leave or a period of continuous leave which includes their last grant of leave.
If this is the case, not only can the individual switch from within the UK before their visa expires, but the role becomes exempt from the employer having to complete a Resident Labour Market Test.
In addition, the employer can, if assigning the certificate of sponsorship for a period of up to three years, pay the “new entrant” rate of pay. This often reflects the pay position for those at the start of their career. It should be noted however that if employers issue the certificate of sponsorship for more than 5 years then they will be required to pay £30,000 or the experienced worker rate whichever is the higher. This is a common issue for employers who may fall foul of the rules by not paying the appropriate rate and thus resulting in the student’s Tier 2 visa being refused.
However, if the potential graduate is not in the UK on a Tier 4 and is overseas employers will be required to advertise the role in two places to satisfy the Resident Labour Market and show that there are no suitable settled workers available for the job before they can appoint the overseas national. They will then need to apply to the monthly panel which sits at the UKVI for a restricted certificate of sponsorship to assign to the overseas student. In this case they would only be permitted to pay the new entrant rate if the certificate was being assigned for up to three years and the individual was under 26 at the time of the application.
When offering roles to graduates it is essential that employers have checked that the job that they are doing meets not only the appropriate salary level as described above but also the skill level currently required. The current rules permit sponsorship for only graduate level jobs as per a list at Appendix J on the UKVI website. They should ensure that the jobs that they are offering meet this threshold and that they do not simply try to make the job fit one of these jobs. Again, the UKVI will take action against employers if they find that the job description for which the certificate was assigned does not reflect accurately the job that the individual is actually doing.
Applying for and maintaining a Sponsor Licence is onerous and requires employers to comply with a number of duties in relation to monitoring and reporting of migrants. It also requires that employers have impeccable right to work check procedures which apply to all members of staff.
It is essential that those who do sponsor or may wish to sponsor graduates now and in the future are fully complaint with the UKVI policy. Should breaches be found on a UKVI visit, licences could be revoked and those who are currently employed under Tier 2 will have their visas cancelled. Certain cooling off periods following revocation or a refusal of an initial licence will be imposed which could be damaging to the business.
Furthermore, it is possible that Tier 2 will be rolled out post January 2021 to be the only way that employers can employ non-UK nationals in certain roles. As such the sponsor licence system is going to become for most a necessity.