Employing overseas nationals and obtaining permission to work in the UK


Background

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 have a legal right 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 government body responsible for the PBS, the UK Visas & Immigration (UKVI) service has a Code of Practice on complying with the law without discriminating.

Advice, guidance and support

Please contact your Faculty/ Divisional 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 and a UKVI guide to applying for a UK business visitor or work visa are also available.

The UK Visas & Immigration service 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 UKVI Employers Helpline (0845 010 6677) also provides information on all aspects of the immigration system and entitlement to work in the UK. The nearest Home Office Public Enquiries Office is in Cardiff and enquiries regarding specific visa cases can be made via email to BEU.Cardiff@homeoffice.gsi.gov.uk or David.Walsh@homeoffice.gsi.gov.uk

The Faculty/ Divisional HR Team co-ordinate the employment of overseas nationals requiring permission to work in the UK in line with the Overseas National Requiring Permission to Work in the UK Admin Guide.

Who has the right to work in the UK?

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:

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.

Overseas students studying at UK institutions are entitled to work in the UK, with certain restrictions.

* Note - 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.

If offered employment by the University, individual's in all of the above groups will be required to produce satisfactory documentary proof of entitlement to work in the UK in the job they have been appointed to.

Points Based System (PBS) for migrant workers

The majority of 'migrant workers' (ie overseas nationals requiring permission to work in the UK) are covered by the Points Based System (PBS), managed by the UK Visas and Immigration (UKVI), which is made up of 5 Tiers:

  • Tier 1 – High value migrants
  • Tier 2 – Skilled workers
  • Tier 3 – Low skilled workers (suspended until further notice)
  • Tier 4 – Students
  • Tier 5 – Youth mobility and temporary workers, including sponsored researchers
  • There are a small number of other categories of overseas workers that are outside of the 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. With the exception of Tier 1, the individual is also required to have a Certificate of Sponsorship (CoS) from a sponsor employer or educational provider licensed by the UKVI. Sponsors apply on line for CoS’s (which are virtual documents), using the UKVI Sponsor Management System (SMS). 

The University is a licensed sponsor for  Tier 2, Tier 4 and Tier 5. Tier 4, which covers overseas nationals wishing to study in the UK, is managed by a sponsorship licence administered by the University's 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.

In some cases 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 under the PBS are also entitled to apply for a LLTR visa.   

Tier 1 – high value migrants

The Tier 1 route is designated for exceptionally talented and highly skilled workers, investors and entrepreneurs from outside the EEA wanting to work in the UK. It includes an Exceptional Talent route for those who are internationally recognised as world leaders or potential world-leading talent in the fields of engineering, science and the arts, currently limited to a national annual allocation of 1000. Individuals do not require a job offer or Certificate of Sponsorship from a prospective employer but do require a formal endorsement from the recognised competent body for their field.

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 1.

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.

Tier 2 - skilled workers: obtaining a Certificate of Sponsorship (CoS)

Tier 2 forms the main route through which the University employs staff from outside the EEA who require a visa to work in the UK or an extension to their existing visa. In order to obtain a visa, points are awarded for English language competence, maintenance (funds) and a job offer at a minimum skill (graduate) and salary level through a Certificate of Sponsorship (CoS) obtained by the employer. The University would only normally be able to obtain a CoS for Research and Teaching roles, or those that require specified specialist skills and qualifications.

There are two types of CoS:

Tier 2 CoS are obtained by Human Resources using the UKVI’s on-line Sponsor Management System (SMS).

In order to obtain a CoS a number of basic requirements relating to the occupational type, skill and salary level of the job must be met in line with the UKVI Tier 2 Codes of Practice for Skilled Workers. In most cases, evidence of how the job was advertised will also need to be provided in order to meet a Resident Labour Market Test (RLMT).

Background information on the  individual’s qualifications, employment record etc will also need to be provided by the recruiting School/ Division; this will include copies of the individual’s qualification certificates relating to the job in question.

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 UKVI, in order to 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.

The UKVI 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.

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 RLMT 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 RLMT, must be made.

Tier 2 - skilled workers: Resident Labour Market Test (RLMT) compliance

Evidence of advertising will need to be provided when obtaining the CoS in order to demonstrate that the RLMT has been met, except for jobs on the UKVI’s shortage occupation list and a limited number of other circumstances. The test is there to protect the settled workforce (ie someone from within the EEA or otherwise already entitled to work in the UK) and means that jobs must advertised in a way that gives settled workers a fair chance to apply.

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 when the CoS application is made.

The University complies with the requirements of the RLMT for advertising vacancies in the following ways:

  • All vacancies are advertised on the University's job site, jobs.ac.uk and the jobcentreplus web site and in compliance with the UKBA Guidance for Sponsors.
  • Any vacancy to which a migrant worker may be appointed will have been advertised for at least 28 days.
  • All applicants must complete the University’s standard application form. The application form requires candidates to confirm their current status in terms of entitlement to work in the UK: a British citizen; an overseas national with entitlement to work in the UK; or an overseas national requiring permission to work in the UK. 
  • The application form for clinical vacancies also requires information on membership of professional bodies and state registration, to ensure entitlement to practice in the UK.

To comply with the selection requirements of the RLMT the following must apply:

  • At short-listing stage, overseas nationals requiring permission to work in the UK, as confirmed on the application form, should be considered alongside the other applicants in the first instance. However, if there are sufficient applicants who are both currently entitled to work in the UK and meet the criteria for the vacancy, it may be appropriate not to shortlist an overseas national who does not currently have permission to work in the UK.
  • Any overseas nationals requiring permission to work in the UK short-listed for the interview and further selection processes will then be subject to the same assessment process as all other short-listed candidates for the vacancy, in line with the University’s Guide to Successful Recruitment and Selection. It is permissible to select for appointment an overseas national requiring permission to work in the UK if they are the most suitable candidate (even if there are other candidates who also meet the job requirements) for Research and Teaching roles (ie because they fall within the UKVI occupational codes which allow this). 

Tier 4 - students

Individuals studying at a Higher Education Institution in the UK under a Tier 4 visa are entitled to work in the UK subject to certain restrictions. To employ such a student, the following conditions must be met:

  • The recruiting manager must ensure that an Right to Work in the UK check is carried out in the usual way;
  • The student must also provide documentary evidence of term dates for the course they are studying which must be kept on file by the employer;
  • The student must not be engaged to work for more than the maximum weekly hours set out in the following table:

Maximum permissible hours worked per week for Tier 4 student workers

Teaching blocks ("term time") Christmas/Easter vacation Summer vacation
Undergraduate
(foundation degree or degree)
20 hours per week Unrestricted Unrestricted
Taught Postgraduate
(includes most MA/MSc students)
20 hours per week Unrestricted 20 hours per week
Research Postgraduate
(includes PhD, MPhil, MLitt)
20 hours per week 20 hours per week 20 hours per week
International Foundation
Programme or pre-sessional course
10 hours per week Unrestricted Unrestricted
Detailed guidance is available in Annex B (International Students) of the UKVI document An Employer's Guide to Right to Work Checks.

Guidance for international students studying in the UK and wishing to work here is available from the International Office and the Careers Service.

It is also possible for a Tier 4 student to switch to a Tier 2 (general) work visa once they have completed their studies. If they have made a Tier 2 application supported by a Certificate of Sponsorship (CoS) before their Tier 2 leave has ended then they can commence the role for which the CoS has been assigned even before they have received a decision on their Tier 2 application. Further information is provided in the UKVI Tier 4 policy guidance

Tier 5 - sponsored researchers

Tier 5 - temporary workers (government authorised exchange) is the authorised route for overseas nationals requiring permission to work in the UK coming to work temporarily at a UK HE institution as a sponsored researcher; either still being paid or funded by their home organisation or the UK host. Tier 5 also includes a number of other specific categories of temporary worker, including the youth mobility category for young people from certain countries to come and experience life and work in the UK.

A Tier 5 Certificate of Sponsorship (CoS) will need to be obtained by Human Resources using the UKBA's on-line Sponsor Management System (SMS). Schools 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 individual can then apply for their visa.

Background information on the individual will need to be provided by the recruiting School, 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 UKVI, to help establish whether they have achieved sufficient points to qualify under Tier 5. As part of this process the UKVI will refer to the information the University has provided when obtaining the CoS.

The UKVI 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 5.

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 Faculty HR Team will need to carry out a check on entitlement to work in the UK on the individuals arrival. The School in which the sponsored researcher will be working will then be responsible for undertaking the migrant tracking and monitoring responsibilities.

The School will also need to contact their Faculty Office to set up an honorary staff record for the sponsored researcher, which will grant them academic status and the Faculty HR Team will include details of their immigration status. The honorary staff appointment end date must be no later than the end date of the individual's visa. If any further work is undertaken after the individual returns to their home country, a new separate honorary staff appointment must be set up in PIMS using a job title that specifies 'overseas access only'.

Academic visitors

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.

Checking the right to work in the UK

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.

All new starters are required to present original documentation confirming their entitlement to work in the UK in line with the prescribed documents in List A or List B of the UKVI Employers Guide to Right to Work Checks. UKVI also has an on-line tool that takes an employer step-by-step through the process of checking documents.

In most cases, new starters will present the required 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 with responsibility for local checks, those on short-term/ casual contracts and academic visitors, 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. 

Migrant tracking and monitoring

The Immigration, Asylum and Nationality Act 2006 charges employers with a number of responsibilities 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 UKVI can be informed:

The following circumstances will also be reported to the UKVI 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 and to check their current home address and contact details.

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.