Restrictions and limitations on international students
Tier 4 students who are sponsored by a HEI or an overseas higher education institution are permitted to work alongside their studies. Their working rights vary depending on the level at which they are studying, and the general position is that students studying at degree level and above can work 20 hours per week during term time and students studying below degree level can work 10 hours per week during term time. In either case they can work full time during holidays.
Students studying at any other institutions including private providers FE colleges and independent schools cannot work.
All employers are of course obliged to make sufficient checks to ensure that their employees have the right to work in the UK and are not working in breach of any visa conditions. Right to work checks must be made before an applicant is employed in order to rely on the statutory excuse.
If document checks are carried out correctly, you will have a statutory excuse against liability for a civil penalty. This means that if the Home Office find that you have employed someone who does not have the right to work, but you have correctly conducted document checks as required, you will not receive a civil penalty for that illegal worker. The guidance entitled ‘An employer’s guide to right to work checks’ (May 2015) clearly states that if you fail to carry out these checks correctly, or at all, and you are found to be employing someone illegally, the Home Office will take tough action against you.
Key issues – serious compliance failings
If an education institution employs Tier 4 students, it should ensure that there are strict measures in place to prevent any students from working in excess of the hours permitted by their visas. If for example students have two jobs at the institution, it is the institution’s responsibility to ensure that both jobs together do not breach the maximum 20 and 10 hour threshold during term time.
A failure to comply, as a Tier 4 sponsor and employer, with illegal working requirements is regarded as a serious compliance failing pursuant to the Tier 4 Sponsor Guidance. As such, if any students are found to be working in excess of their permitted hours, it could result in the revocation of the Tier 4 sponsor licence, which would of course have significant consequences for the institution.
Similarly, any employers who hold a Tier 2 sponsor licence and who are found to be employing students (and other workers) illegally, may face revocation of their Tier 2 sponsor licence.
In circumstances where an employer becomes aware that they have been employing a worker illegally, this should be reported to UKVI as soon as possible. A failure to report could result in the licence being revoked and/or a penalty being issued, amongst other sanctions.
Acceptable right to work documents
The documents you may accept from a person to establish their right to work are set out in regulations. There are two lists – List A and List B.
List A – these documents can be accepted for a person who has a permanent right to work in the UK. If the right to work check is conducted correctly before employment begins, there will be a statutory excuse to the civil penalty for the duration of that person’s employment.
List B – these documents can be accepted for a person who has a temporary right to work in the UK. This will be the case for all Tier 4 Students. A follow-up check must be conducted in order to retain the statutory excuse.
Employers must check the validity of the documents in the presence of the applicant by checking that the documents are genuine, that dates have not expired, that any photos resemble the applicant and that the person has permission to do the type of work you’re offering.
A record of each document must be kept as well as evidence of the date it was checked. Copies should be kept securely for the duration of the person’s employment and for a further two years after their employment terminates.
Additional evidence from students
Employers who recruit students whose documents indicate that they have a limited right to work in the UK, must obtain and retain evidence of the student’s academic term and vacation dates. The employer will then be able to determine when an international student employee can work part-time and when they are permitted to work full-time.
This evidence should originate from the sponsoring education institution. Examples of acceptable evidence include:
a printout from the education institution’s website or other material published by the institution;
a copy of a letter or email addressed to the student from the education institution and confirming term time dates for the student’s course; or
a letter addressed to the employer from the education institution confirming term time dates for the student’s course
The Home Office published new guidance for Employers and Sponsors in January 2016 focusing on the checks required to ensure the authenticity of a BRP Card. There are specific details that will help an employer identify any concerns with a BRP Card which include the permit number (this should start with two letters followed by seven numbers and should not feel raised from the card) and the thickness of the card (the permit should feel thicker than a photo-card driving licence and should make a distinctive sound when flicked due to the material it is made of). There are other factors as set out in the new guidance that employers should be aware of when checking BRPs.