Strike action commences for many staff across 60 universities this week. Many will be international staff who are sponsored under Tiers 2 or 5. The industrial action is also likely to mean that many international students, sponsored under Tier 4, may miss classes and other scheduled activities. Here we look at what the Home Office’s rules for sponsors say about industrial action.
Tier 4 sponsored students
The Home Office’s Tier 4 Sponsor Guidance confirms that if sponsored students are absent because of industrial action, this is not to be treated as an unauthorised absence by the sponsor. The absence should not be counted towards the ten missed expected contact points.
However, the guidance is clear that the Home Office’s position only relates to scenarios where a student who is sponsored under Tier 4 misses an expected contact point because the event is “cancelled” due to industrial action.
If a sponsored student misses an expected contact point that has not been cancelled due to industrial action because, for example, the student does not wish to cross a picket line then, according to the Home Office’s guidance, the sponsor would be expected to record the absence as an unauthorised absence.
Of course, there may be exceptions where an absence is a permitted absence under the university’s absence policy, for example, if the student is unwell or, if allowed, takes holiday leave. The university’s policy relating to attendance, engagement and absence will be key in determining the approach the university should take.
The rules for sponsors are set out in Appendix A of Document 2 of the ‘Tier 4 of the Points Based System: Guidance for Sponsors‘.
Staff sponsored under Tiers 2 & 5
The position regarding staff who are sponsored under Tiers 2 and 5 is set out in the corresponding guidance for those Tiers.
The Home Office updated its rules on industrial action in July 2018 following strikes in February 2018.
Paragraph 26.26 of the current version of the guidance confirms that absences due to the individual taking part in “legally organised industrial action” are not counted when determining if a sponsored migrant has been absent from work for four weeks or more. Such a level of absences over any calendar year during the period of sponsorship requires the sponsor to withdraw sponsorship, unless one of the exceptions that are listed applies — these include industrial action.
The guidance also confirms, at paragraph 26.31, that reductions in pay caused by industrial action that may result in the individual being paid a lower rate than permitted (as set out in the SOC code, or the minimum threshold for sponsorship if the SOC code rate is lower) do not trigger the requirement for the sponsor to cease sponsoring the individual.
What is the legal status of the Sponsor Guidance?
Unfortunately, and unhelpfully in our view, this question was put to the Supreme Court back in 2013 in the case of New London College Ltd.
Lord Sumption delivered the leading judgment, observing that:
The rules contained in the Tier 4 Guidance….are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them”
Conclusion
Sponsors must keep absence records relating to sponsored migrants (staff and students) pursuant to Appendix D of the Sponsor Guidance.
We would recommend that these records contain notes to clearly highlight where the cause of an absence was industrial action leading to class etc. cancellations or otherwise.
This will assist the sponsor in demonstrating compliance with UKVI’s rules in the event of an audit and will also enable compliance teams to contact international students who are absent during this period to help them to ensure that such action does not risk jeopardising their status in the UK.
If you require any information on any aspect of sponsorship, please contact us.
