As an employer, the University has a legal responsibility to prevent illegal migrant working in the UK. The Asylum and Nationality Act 2006 stipulates the civil penalties that employers are liable to pay for committing the offence of employing an illegal migrant worker: up to £10,000 per illegal worker; if an illegal worker is knowingly employed, the offence will carry the potential of an unlimited fine and/ or prison sentence of up to two years. The Act includes the recommendation that employers conduct basic document checks on every person they intend to employ to ensure that they only employ people who are legally entitled to work in the UK; and to establish a legal ‘excuse’ against liability for payment of a civil penalty if an illegal worker is erroneously employed. The Act also covers employer responsibilities for tracking and monitoring the immigration status of migrant workers once employed, and reporting unauthorised absence.
The 2006 Act introduced a unified Points Based System (PBS) to replace the previous work permit and other immigrant worker schemes. The PBS is the mechanism for the University to employ overseas nationals requiring permission to work in the UK.
The resident population of the United Kingdom contains a wide range of ethnic groups and there are also many people from outside the UK who are entitled to work here. It is therefore important to remember that the checks on entitlement to work in the UK need to be carried out for every person that the University intends to employ, regardless of their race, ethnicity or nationality, to avoid any potential discrimination. The UK Border Agency (UKBA) has a Code of Practice on complying with the law without discriminating.
Please contact your Faculty HR Team if you have any queries regarding employing overseas nationals and the immigration system. A comprehensive list of FAQ's for overseas nationals on working in the UK is also available.
The UKBA have comprehensive Guidance for Sponsors, which cover all aspects of employing overseas nationals requiring permission to work in the UK through the Points Based System. The UKBA Employers Helpline (0845 010 6677) also provides information on all aspects of the immigration system and entitlement to work in the UK.
The HR Team co-ordinate the employment of overseas nationals requiring permission to work in the UK in line with the HR Admin Guide (currently being updated).
The following groups are considered to be 'settled workers', are not subject to immigration control and therefore have no restrictions on working in the UK:
* Nationals from these EU member states (‘Accession State workers’) are free to work in the UK but must register with the UK Border Agency under the Government’s Worker Registration Scheme within their first month of starting employment.
Nationals from the two newest EU members, Bulgaria and Romania, are covered by the Accession Worker Card Scheme.
Asylum seekers whose applications are successful and are granted Indefinite Leave To Remain (ILTR) are entitled to work in the UK without any restrictions. Asylum seekers are not normally allowed to work in the UK whilst their asylum application is being considered, except in very limited circumstances.
British Overseas citizens, British Overseas Territories citizens, British Nationals (Overseas), British Protected Persons and British Subjects are all forms of British nationality which require permission to live and work in the UK. There may be an entitlement to register as British citizens in certain circumstances.
Commonwealth citizens, British Overseas Territories citizens and British Overseas citizens are entitled to work in the UK under the Working Holiday Maker Scheme.
Overseas students studying at UK institutions are entitled to work in the UK, with certain restrictions.
The majority of Academic Visitors to the UK for any period of time for academic purposes and who are not from the EEA require entry clearance to the UK in their own country prior to travelling.
If an individual either has no restrictions on their stay in the UK or is subject to immigration control as above, they should be able to produce the required documentation to demonstrate this.
All other 'migrant workers' (ie overseas nationals requiring permission to work in the UK) are covered by the Points Based System (PBS). Individuals have to accumulate points for factors such as qualifications, prospective earnings and English language competence in order to obtain entry clearance and leave to remain in the UK. The PBS, managed by the UK Border Agency (UKBA), includes 5 Tiers:
With the exception of Tier 1, a migrant is required to have a Certificate of Sponsorship (CoS) from a sponsor employer licensed by the UKBA. Sponsor employers apply on line for CoS’s (which are virtual documents), using the UKBA Sponsor Management System (SMS).
The University is a licensed sponsor employer for Tier 2, Tier 4 and Tier 5. Tier 3, which covers limited numbers of low skilled workers needed to fill specific temporary labour shortages, is currently suspended indefinitely. Tier 4, which covers overseas nationals wishing to study in the UK, is managed by a sponsorship licence administered by the International Office.
In order to obtain prior entry clearance before entering the UK, the individual will have to qualify through one of the above Tiers and be issued with a visa for Limited Leave to Remain (LLTR) and a biometric identity card. The Government aims to work towards the introduction of secure identity cards for non-EEA nationals with the intention of simplifying the list of documents employers require as proof of entitlement to work in the UK.
An individual who is already legally in the UK can potentially ‘switch’ from one immigration category to another. When the individual does this, he/she must meet the initial entry requirements for the new category.
Spouses, unmarried partners and dependant children under the age of 18 of people who qualify for leave to remain under the PBS are also entitled to apply for leave to remain.
Individuals who qualify under Tier 1 do not require a job offer or Certificate of Sponsorship from their prospective employer, and therefore do not need to meet a Resident Labour Market Test. An advantage of permission to work under this tier is that it relates to the individual rather than a specific job and is therefore transferrable across different employment.
If a selected candidate requires permission to work in the UK, Human Resources will contact the candidate to check whether they could potentially qualify under Tier 1. This option can then be discussed with the candidate as an alternative to the Tier 2 Certificate of Sponsorship process outlined below. The UKBA has a points calculator self assessment facility to enable individuals to check whether they would be eligible under Tier 1.
Information on recent changes to Tier 1 can be found here.
An individual who applies to the UKBA for leave to enter or remain (a visa) under Tier 1 will be awarded points based on their qualifications, previous earnings, UK experience, age, English language skills, and available maintenance funds.
If an individual is granted a visa under Tier 1 by the UKBA, formal confirmation of this will need to be requested before offering employment.
If an individual does not qualify for or wish to be considered under Tier 1, qualification under Tier 2 may be possible for skilled workers (for instance, researchers). In this case the University would have to act as the sponsoring employer and a Tier 2 Certificate of Sponsorship (CoS) would need to be obtained by Human Resources using the UKBA’s on-line Sponsor Management System (SMS). As the permission to work is only provided for the specific job covered by the CoS, when the individual's employment in that job ends so does their permission to work in the UK. Because of this, in some limited cases where Tier 1 is applicable, it may be preferable for the individual to apply through Tier 1 as a highly skilled as outlined above.
The CoS, along with qualifications, ability to maintain themselves and any dependants prior to receiving a salary and English language competence, will determine whether the individual achieves sufficient points to qualify under Tier 2.
The UKBA points calculator self assessment facility can be used to check whether an individual would be likely to obtain sufficient points to be eligible under Tier 2.
In order to obtain a CoS under Tier 2 the following basic requirements must be met in line with the UKBA Tier 2 Code of Practice:
Evidence of advertising will need to be provided when obtaining the CoS in order to demonstrate that the RLMT has been met, except in the following circumstances:
If an individual is a named researcher on a research grant, and the vacancy has therefore not been advertised, details of the grant paper naming the individual may need to be provided to demonstrate that the RLMT is met.
Background information on the individual’s qualifications, employment record etc will also need to be provided by the recruiting department; this will include copies of the individual’s qualification certificates relating to the job in question. A check will be made to ensure that the migrant is qualified to at least NVQ level 3 (A level equivalent).
The individual will need to quote the CoS number as part of the application process for seeking leave to enter or remain in the UK (a visa) from the UKBA, to help establish whether they have achieved sufficient points to qualify under Tier 2. As part of this process the UKBA will refer to the information the University has provided when obtaining the CoS.
Individual'S will initially be given a maximum of a three year visa for working and living in the UK, which will have to be extended if they are to stay for longer. After five years they will be entitled to apply to live in the UK permanently. If their contract is for less than three years then the visa will be linked to the length of contract.
An individual who is employed under Tier 2 can apply for an extension of his/her permission to stay (this is known as further leave to remain) to continue working in the same role. In such cases, as with initial entry, a CoS needs to be applied for using the SMS before the individual makes an application for an extension of stay. A further Resident Labour Market Test will not be required as part of the CoS application.
If the individual requires an extension of his/ her permission to stay in order to carry out a different job at the University, a full application for a CoS, including meeting the Resident Labour Market Test, must be made.
Information on recent changes to Tier 2 can be found here.
The University complies with the requirements of the RLMT for advertising vacancies in the following ways:
To comply with the selection requirements of the RLMT the following must apply:
A sponsored researcher would normally fall into one of the following categories:
A Tier 5 Certificate of Sponsorship (CoS) will need to be obtained for a migrant sponsored researcher by Human Resources using the UKBA's on-line Sponsor Management System (SMS). Departments who wish to host a sponsored researcher must therefore contact their Faculty HR Team at the earliest opportunity to ensure that the CoS can be obtained and the migrant can then apply for their visa.
The CoS, along with available maintenance funds to meet all expenses for the duration of their visit (and have no recourse to public funds), will determine whether the migrant achieves sufficient points to qualify under Tier 5, through the government authorised exchange category. The UKBA points calculator self assessment facility can be used to check whether a migrant would be likely to obtain sufficient points to be eligible under Tier 5.
Background information on the individual will need to be provided by the recruiting department, together with a copy of the evidence of the sponsorship arrangement under which the individual is coming to the University and confirmation of maintenance funds (which may consist of combined funding, eg from a sponsoring body plus a salary from the overseas institution).
The individual will need to quote the CoS number as part of the application process for seeking leave to enter or remain in the UK (a visa) from the UKBA, to help establish whether they have achieved sufficient points to qualify under Tier 5. As part of this process the UKBA will refer to the information the University has provided when obtaining the CoS.
Migrants sponsored researchers will initially be given a visa for a maximum period of 24 months, or the time given in the CoS plus one month, whichever is shorter; and are not permitted to switch into other employment once in the UK.
The department in which the sponsored researcher will be working are responsible for checking entitlement to work in the UK on the individuals arrival and also for undertaking the migrant tracking and monitoring responsibilities; for sponsored researchers who's stay at the University is for over a year, this will include the requirement for the department to carry out an annual check to ensure the individual is still entitled to work in the UK.
The department will also need to contact their Faculty Office as academic status may need to be granted and to set up an honorary staff record for the sponsored researcher, which will include details of their immigration status.
If an overseas national requiring permission to work in the UK is visiting the University to take part in more short-term academic activity (eg to give a lecture, as an external examiner or participate in a selection panel) then the Visitor Undertaking a Permitted Paid Engagement or (for unpaid work) Business Visitor routes apply.
The formal offer of employment will confirm that the offer is subject to providing satisfactory documentary proof of entitlement to work in the UK in the job they have been appointed to, in line with the Immigration, Asylum and Nationality Act 2006.
In most cases, new starters will present the required original documentation in person to Human Resources prior to commencing employment or, if this is not possible, at the earliest opportunity when they commence. The exceptions to this are new starters in departments remote from the main university campus, those on short-term/ casual or part-time teaching contracts and sponsored researchers, for whom the document checks are carried out locally.
For clinical (GMC), dentistry (GDC) and nursing (NMC) appointments, professional registration details will also be checked using the relevant on line register.
The Immigration, Asylum and Nationality Act 2006 charges employers with a number of responsibilities relating to the tracking and monitoring of migrant workers. This includes a number of reporting requirements relating to migrant workers employment; it is therefore vital that the following circumstances are reported to Human Resources immediately so that the UK Border Agency can be informed:
The following circumstances will also be reported to the UKBA by Human Resources:
In line with the requirements of the 2006 Act, Human Resources will also carry out an annual check to ensure staff with LLTR are still entitled to work in the UK.
If an employee has a change in their contact details, they are able to update their details through the StaffInfo link in the My Bristol portal or report the change to Human Resources. Human Resources will contact all staff on a periodic basis to check their StaffInfo record and update where required.