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Education e-briefing - Government clarifies the impact of strike action on immigration status of Tier 2 and 5 sponsored staff

  • United Kingdom
  • Education - Briefings

17-07-2018

In our briefing dated 29 March 2018  we referred to the issue that had arisen from the recent industrial dispute between the University and College Union (“UCU”) and 65 high education institutions regarding plans to change staff pensions and the sponsorship of staff under Tier 2 or 5.

One requirement of sponsoring a Tier 2 or 5 migrant is to report non-attendance at work which occurs for ten consecutive days without permission. Another requirement is that sponsorship should not continue if unpaid absence from work continues for more than 28 days in a calendar year or that the total salary to be paid to the employee falls below the minimum requirement specified by UK Visas and Immigration.

Whilst the way the industrial action was structured, and the number of strike days which have arisen this year, mean that the reporting and sponsor duties have not so far been engaged, the matter remains a live one given the possibility of further strike action later this year.

A major difficulty for institutions is that compliance with the immigration requirements is necessary but to withdraw sponsorship of a migrant for their involvement in industrial action would appear to be in violation of their fundamental right to strike and the cause of tension with the rights that employees have to claim unfair dismissal where their employment has been terminated for taking part in lawful industrial action.

There were reports of inconsistent advice from UK Visas and Immigration caseworkers about this issue and UCU had written to the then Home Secretary, Amber Rudd, seeking assurances that sponsored migrants should not be dismissed for taking part in lawful industrial action.

Welcome clarification has now been provided by the Government. On 12 July 2018, Sajid Javid, the Home Secretary, made a written statement to the House of Commons. In this he stated that it is not the Government’s policy to prevent migrant workers from engaging in legal strike action and, to put the matter beyond doubt, the Home Office will be making changes to the guidance and Immigration Rules for migrant workers and their sponsors under the Tier 2 and 5 immigration routes.

This will be done by adding legal strike action to the current list which permits absences from employment without pay. The statement goes on to say “it will make clear that there will be no immigration consequences for any migrant worker who takes part in legal strike action in the same way that a migrant worker is not disadvantaged if they take maternity or paternity leave.”

The requisite changes to the sponsor guidance will be made “shortly” and amendments to the Immigration Rules will be made “at the next available opportunity in the Autumn.”

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