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HE action - advice for migrant workers

Migrant workers and taking action

FAQs for migrant staff taking industrial action

The law and practice set out here in relation to indefinite leave to remain (ILR) and absence due to strike action is as at November 2019. It is important to note that immigration law changes frequently and UCU will keep this under regular review in the coming months. Members should check the law before making applications for leave.

Impact of industrial action on ILR

Does taking lawful strike or other industrial action as a Tier 2 visa holder have any direct or indirect impact upon applications for ILR?

As part of the changes to the Immigration Rules announced in September 2019, Tier 2 migrants will not be penalised in applications for ILR if they are absent from work due to legal strike action. This includes not being refused ILR if such an absence causes their salary to fall below the required threshold.

What should someone do if they feel their ILR application has been turned down for reasons related to industrial action taken while employed on a Tier 2 visa?

Seek legal advice.  An in-time application for further or indefinite leave to remain will attract a right of appeal on human rights grounds, provided that you have mentioned human rights in your application.  The relevant human right is Article 8 of the European Convention on Human Rights (the right to respect for private and family life).  If you are refused further or indefinite leave, you should lodge an appeal. The deadlines for lodging appeals are very strict so it is advisable to check these as soon as you receive the decision.

Do members applying for ILR need a letter or certificate from their employer to confirm that their absence was related to lawful industrial action, and are employers obliged to provide documentation to staff members to state they have undertaken lawful strike action?

An applicant cannot make a successful ILR application without a supporting letter from their current employer (ie their Sponsor) confirming the information described in paragraph 245HF(c)(ii) in Part 6A of the Immigration Rules, as follows:

  1.  that they still require the applicant for the employment in question for the foreseeable future
  2.  the gross annual salary paid by the Sponsor, and that this salary will be paid for the foreseeable future
  3. if the applicant is currently absent from work for a reason referred to in paragraph 323AA(a)(i) to (viii) in Part 9 of these Rules, or has returned from such an absence within the calendar month immediately preceding the date of application
    • (aa) the date that the period of absence started and the date that it finished (or is expected to finish)
    • (bb) the applicant's salary immediately before the absence started, and
    • (cc) the applicant's salary from the date of their return, or expected return, to work

and

  1. if the applicant is paid hourly, the number of hours per week the salary in (2) or (3) is based on.

The Home Office's view is that it is difficult to see a situation whereby an employer provides a letter confirming the information in (1), (2) and (where applicable) (4) but refuses to provide the information in (3) (which relates to absence from work due to taking part in strike action as part of a legally organised industrial action).  If this were to happen, it's a matter that would be considered on a case-by-case basis.

Tier 2 sponsors have a duty to maintain a record of all migrant absences and the reason for them as part of their sponsorship record-keeping duties (see, for example, para 2.6 of the Tier 2 and 5 sponsor guidance, and Part 1, paragraph i, of Appendix D to the sponsor guidance). Sponsors must report if a migrant is absent without permission for 10 consecutive days or more (para 15.6 of the sponsor guidance). Sponsors are required to cease sponsorship of a migrant who is absent without pay for 4 weeks or more, unless the absence is for a reason covered by para 323AA(a)(i) to (viii) of the Immigration Rules and para 26.26 of the Tier 2 and 5 sponsor guidance.  These absences include strike action - so it follows that a sponsor must at least have kept a record of the absence and the reason for it and be prepared to show that to a UKVI compliance officer if asked. Similar provisions exist for reductions in salary (para 323AA(h) of the Rules, para 26.31 of the sponsor guidance).

In summary, even if an employer is not sympathetic to the idea of strike action, they must engage with it as part of their sponsor duties if any of their sponsored migrants have taken such action; and they must confirm that the migrant has taken industrial action if they wish to retain the services of the migrant by supporting their ILR application (or otherwise claim an exemption from the absence-without-pay or reduction-in-salary provisions).

Members are under no obligation to inform management in advance about whether they will be taking part in strike action or action short of a strike. However, for the purposes of visa compliance UCU believes it is in the interests of Tier 2 migrants to ensure their employer has an accurate record of any strike action taken. We would therefore encourage members to seek confirmation from their employer that any absence due to strike action is recorded appropriately.

UCU would be willing to issue statements to affected members confirming the dates of strike action for use as supplementary evidence.

Does docked pay as a result of legal industrial action have an impact upon any earnings requirements under ILR?

The purpose of the recent changes to the Immigration Rules (as set out in Statement of Changes HC 2631) is to ensure that Tier 2 migrants are not penalised if they are absent from work due to engaging in legal strike action.  The changes mean, for example, that a Tier 2 migrant will not be refused ILR if, at the time of application, their salary is temporarily below the appropriate salary rate solely as a result of such an absence. The Rules already contained similar exemptions for migrants on maternity, paternity, shared parental, or adoption leave.

If pay is docked as a result of lawful industrial action, this should not have a negative impact when applying for ILR. The relevant part of the Immigration Rules (paragraph 245HF) requires the current employer to provide a letter/certificate stating that they still need the applicant for the job, the gross annual salary paid by the Sponsor, and that this salary will be paid for the foreseeable future.  Therefore there should be no issue if the employer is able to confirm that the applicant's normal salary meets the relevant minimum salary requirements for ILR.

What duty of care or other legal duty do employers have to migrant staff taking legal industrial action to ensure they are aware of their legal rights and responsibilities?

From a purely employment law perspective, there is no obligation on employers in the event of a strike or lawful industrial action to inform employees of their legal rights and responsibilities.

Tier 2/5 visa holders

Is it correct that reductions in salary arising from industrial action that fall below the appropriate rate due to strike action do not trigger the employer's responsibility to make a report via SMS?

Paragraph 26.26 of the Sponsor Guidance for Tiers 2 and 5 states that migrants sponsored under Tier 2 can take short periods of unpaid leave, but the sponsor has to stop sponsoring a migrant who is absent from work without pay for 4 weeks or more in any calendar year.  However, one of the exceptions to this is taking part in strike action as part of a legally organised industrial action.   Normally, the cut in salary would have to be reported, but this is not the case if the salary cut is as a result of legally organised industrial action.

As per the clarification obtained from the Home Office last year, migrant workers can take industrial action without having to count strike days towards their number of unauthorised absences.  What obligation does the employer have to report strike absences correctly?

As outlined in response to question 6, where absence is due to legal strike action, the sponsor employer will not have to report absence or salary cuts.

If you transfer jobs/change your sponsor while remaining on a tier 2/5 visa, can a letter from the employer be requested to specify that you were on lawful strike action?

There is no obligation for employers to provide a letter specifying that an employee was on lawful strike action. There is also no general obligation (unless the contract of employment states otherwise) for an employer to provide employees with a reference. However, if an employer chooses to give a reference, it is under a duty to ensure that such a reference is factually accurate.  

UCU would be willing to issue statements to affected members confirming the dates of strike action for use as supplementary evidence.

What obligation is there on the staff member to report that they took strike action in order that their absence can be properly allocated as authorised?

Tier 2 sponsors have a duty to maintain a record of all migrant absences and the reason for them as part of their sponsorship record-keeping duties. Sponsors are required to cease sponsorship of a migrant who is absent without pay for 4 weeks or more, unless the absence is for a reason covered by para 323AA(a)(i) to (viii) of the Immigration Rules and para 26.26 of the Tier 2 and 5 sponsor guidance.  These absences include strike action - so it follows that a sponsor must at least have kept a record of the absence and the reason for it and be prepared to show that to a UKVI compliance officer if asked.  Similar provisions exist for reductions in salary (para 323AA(h) of the Rules, para 26.31 of the sponsor guidance).

The union can provide a document to members confirming that the industrial action was lawful and when it took place and that this was thus a permitted absence within the terms of the regulations.

For the purposes of visa compliance UCU believes it is in the interests of Tier 2 migrants to ensure their employer has an accurate record of any strike action taken. We would therefore encourage members to seek confirmation from their employer that any absence due to strike action is recorded appropriately.

Tier 4 student absence

Page 97 of the guidance for Tier 4 sponsors makes it clear that absences due to industrial action do NOT count towards the 10 consecutive absences that students are allowed to have before they reported. What should students do in this situation to show that they were ready and available to attend classes that were strikebound?

The usual obligation on sponsoring educational institutions is to report a student who misses 10 consecutive expected contact points.  However, this does not apply to those students who miss an expected contact point due to industrial action by lecturers. The rationale for this is that "An expected contact point is one which the student would in principle have been able to attend. If a lecture, tutorial or other planned contact point with a student is cancelled due to industrial action, any missed contact points caused by the industrial action of lecturers should not be treated as unauthorised absences."  (See page 97 of Tier 4 of the Points Based System: Guidance for Sponsors, document 2: Sponsorship Duties.)

Can T4 students skip lectures given by non striking staff in order to show support for the strike without incurring an absence?

If a Tier 4 sponsored student skips lecture by non-striking staff in order to show support for the strike, this would be an unauthorised absence.  A student who misses 10 consecutive expected contact points can expect to be reported by the educational institution.

What discretion do universities have in the way that they count such absences?

Universities have very little discretion over reporting absences. Tier 4 of the Points Based System: Guidance for Sponsors, document 2: Sponsorship Duties sets out the situations when an educational institution has to report a student who missed 10 consecutive expected contact points.  If the university does not comply with the sponsorship duties their sponsor rating can be downgraded or revoked entirely.

Can individual lecturers refuse to mark absences that took place on a strike day?

Where a lecturer is required to record the absence of students from lectures or seminars, this is likely to form part of their role which they are contractually obliged to fulfil. Deliberately failing to do so may, therefore, amount to a breach of contract, which may lead to disciplinary action against them. Further, if a lecturer falsifies records and/or misleads the University which employs them, such as knowingly failing to keep accurate records, the lecturer is at risk of breaching their contract of employment with the University.    

Some Tier 4 PhD students are also employed by their host university to teach. What are their rights to strike?

There is no specific prohibition on Tier 4 students taking part in industrial action, nor any requirement for a sponsor to withdraw sponsorship on that basis.

Where a Tier 4 migrant is employed and is taking part in lawful strike action that prevents them working as normal, the restrictions on absence that relate to Tier 2 migrants do not apply. In short, those on Tier 4 student visas should observe the visa requirements that relate to their role as a student.

Since Tier 4 leave does not usually count towards settlement, there is no equivalent of the Tier 2 concern about periods with gaps in earnings not counting towards settlement.

Last updated: 3 December 2019