Update: the Home Office has updated its position and you can find updated information here.
Strike action, such as that taking place at the moment by members of the University and College Union, is not specifically covered in the ‘Tier 2 and 5: guidance for sponsors’.
The sections of the Tier 2 and 5 sponsor guidance relating to the sponsor’s duties and the potential effect on the worker’s visa do however contain information regarding unauthorised absences and reductions in pay. We therefore sought clarification from the Home Office on whether or not there are any obligations on sponsors to make reports or take any other action in relation to sponsored workers who are on strike.
The Home Office’s position
The Home Office has confirmed to us in an email dated 20 February 2018 that:
‘Absence from work due to strike does count as unauthorised absence (even though there is certain legislation protecting workers for being dismissed if they do go on strike, assuming the strike meetings [sic] the appropriate requirements within that legislation). As such more than 10 days absence due to strike action would require reporting via SMS’.
In relation to minor reductions in pay resulting from strike action, the Home Office has confirmed that ‘a temporary reduction in pay would not need to be reported’. They have set out scenarios when reductions may trigger action and these are set out below with our questions to the Home Office and its answers.
Our question:
Please can you confirm what, if anything, needs to be reported to UKVI by a sponsor if a migrant is involved in strike action for (a) less than 10 consecutive working days or (b) more than 10 consecutive working days (paragraph 15.7 Tier 2 Sponsor Guidance)?
Home Office answer:
‘If the migrant is absent for 10 consecutive working days due to industrial action then this must be reported as per paragraph 15.7 of the Sponsor Guidance. There is no need to report an absence of less than 10 working days’.
Our question:
If days on strike would take the migrant’s levels of absence from work without pay to more than 4 weeks during any calendar period, please can you confirm if UKVI would expect the sponsorship to cease (paragraph 26.24 Tier 2 Sponsor Guidance)?
Home Office answer:
‘Yes, the employer would need to report that they no longer sponsor the migrant in these circumstances’.
Our question:
If the reduction in pay was such to take it below the level required in the SOC codes, would that require the termination of sponsorship (paragraph 26.21 Tier 2 Sponsor Guidance)?
Home Office answer:
‘Yes, we would expect the employer to report that they no longer sponsor the migrant in these circumstances. This would also be the case if the salary dropped below the minimum threshold for Tier 2 (i.e. £20,800 or £30,000 depending on the circumstances)’.
Our advice
Pursuant to Appendix D of the sponsor guidance, sponsors must keep a ‘Record of the migrant’s absences, which may be kept electronically or manually’.
As outlined above, the Home Office’s position as set out in an email to us, is that industrial action in the form of a strike does not alter the duties the sponsor has relating to workers who are sponsored under Tier 2 and also Tier 5 of the Points Based System.
We recommend that workers with a visa under Tier 2 or Tier 5 who are considering taking part in industrial action in the form of a strike communicate with their sponsoring institution to understand the action the institution may be required to take in order to comply with the Home Office’s rules for sponsors.
According to the General Grounds of Refusal contained in the Immigration Rules, there is no reason why the reporting of absences from work to the Home Office as a result of strike action should, of itself, have adverse consequences for the sponsor or the sponsored worker.
Due to the wording of the sponsor guidance and the General Grounds of Refusal in the Immigration Rules, it is important in our view that all concerned keep an eye on unpaid leave days and ensure that the combined total (including general unpaid leave not connected with strike action but excluding that which is exempt such as maternity leave) does not exceed more than 4 weeks (or the pro-rated equivalent) during the calendar year. This is the key issue that needs to be focused on right now because of the potentially harsh penalties set out in both the sponsor guidance and the Immigration Rules – the potential termination of sponsorship.
Please note that it is possible that the Home Office may change its approach and/or provide different information to different sponsors. There may also be an arguable case as to the legality of the Home Office’s approach, as outlined above, in the event that adverse action is taken.
Tier 2 sponsored workers should also be aware that the rules relating to absences from the UK in relation to ILR applications changed in January 2018.
If you need legal advice on this matter, please contact us.
