Migrant workers and industrial action

The law and practice set out here in relation to ongoing sponsorship, extension applications, indefinite leave to remain (ILR) and absence(s) due to strike action is correct as at 31 January 2023 unless otherwise notified as being more recent. The links to any external websites are correct at the time of publishing. References to lawful industrial action include both strike action and action short of a strike (ASOS).

It is important to note that immigration laws change frequently and UCU will keep this under regular review.

Members should always check the legal position and requirements before making applications for leave. If in doubt seek legal advice from a lawyer qualified to give UK immigration advice.

  Migrant members on sponsored visas who participate any current marking and assessment boycott should notify their employer as soon as possible after beginning to take action of their participation in this industrial action. This is because it is important that employers have an accurate record of reasons for any absence or reduction in salary for the purposes of reporting under their sponsorship requirements.

General issues

How might those on sponsored work visas (old Tier 2/Skilled Worker) report their absence to their employer if they decide to participate in strike action which is of indefinite length, and therefore the migrant worker does not know how many days it will be?

As of January 2024, indefinite strike action has not been called by the union. However, as with all strike action we advise you keep a close and careful record of all your absences from work not only for your own records but to compare as needed with any employer's record. For indefinite action or action which would cause absence of 10 consecutive days or more, members are advised to report as soon as possible after they begin participating in action.

You should report your strike action absence in the same way as other absences--making sure that you note specifically all reasons for all absences.

How can I ensure that my employer records the absence accurately in such circumstances?

You should keep your own accurate record of all your absences and note which days relate to strike days or action short of a strike activity. If you believe that your records do not tally with that of your employer, speak to your UCU rep/office and also seek legal advice as a matter of priority.

Impact of industrial action on ILR

Does taking lawful industrial action as a Tier 2 / Skilled Worker 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 / Skilled Worker 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. Again, note that salary reductions must be reported by your employer on the SMS and also in any employer's letter.

If you have any questions on participating in lawful industrial action and how it might impact your own application for ILR, seek legal advice.

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 / Skilled Worker visa?

Seek legal advice immediately.  An in-time application for further or indefinite leave to remain may 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 take advice about lodging 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 applying on the basis of being a sponsored worker (e.g. a Tier 2 or Skilled Worker) cannot make a successful ILR application without a supporting letter from their current employer (i.e. their Sponsor). This letter must confirm the information described in the Immigration Rules, as follows:

1. that the employer still requires the applicant for the employment in question for the foreseeable future; and

2. the gross annual salary paid by the Sponsor, and that this salary will be paid for the foreseeable future; and

3. if the applicant is currently absent from work for a reason referred to in paragraph 9.30.1 in Part 9 of these Rules (this refers to unpaid absences of more than 4 weeks unless expressly permitted such as for reasons of maternity, paternity or sick leave, or for participation in lawful strike action), 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

4. 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 is a matter that would be considered on a case-by-case basis.

Tier 2 / Skilled Worker visa sponsors have a duty to maintain a record of all sponsored workers' absences from work and the reason for them, as part of their sponsorship record-keeping duties (see, for example, Part 1, paragraph i, of Appendix D to the sponsor guidance).

Sponsors must report:

1. if a sponsored worker is absent without permission for 10 consecutive days or more. The absence must be reported within 10 working days of the 10th day of absence

2. unauthorised and any absences without pay for more than 4 weeks UNLESS the absence is for a reason allowed within the Immigration Rules.

a. if the absence is for a reason covered by paragraph 9.30.1 of the Immigration Rules and section S4.13 of the Sponsorship Guidance for Skilled Worker and Temporary Workers, then the absence does not need to be reported using the SMS
b.  such 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
c.  similar provisions exist for reductions in salary (para 9.31.3 of the Immigration Rules and para S4.16 of the sponsorship 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 workers 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 sponsored Tier 2/ Skilled Worker employees to ensure their employer has an accurate record of any strike action taken AND your own accurate record of all absences from work for participating in any lawful industrial action. 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 reduced pay as a result of legal industrial action have an impact upon any earnings requirements under ILR?

The purpose of the changes to the Immigration Rules (as set out in Statement of Changes HC 2631) is to ensure that Tier 2 / skilled worker migrants are not penalised if they are absent from work due to engaging in legal strike action.

These changes mean, for example, that a Tier 2 / skilled worker 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 guidance for ILR applications states that the current employer is required 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.

See here for details of the current minimum salary level 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.

What other considerations should I be making in relation to evidence linked to participation in lawful strike action to support applications for further leave to remain?

It is important all visa holders are aware of the requirements of their particular route to extend and settle from when they are first granted permission to enter or stay. Each category has its own conditions and particular requirements to extend or settle.

Applicants from Tier 2 / Skilled Worker, Tier 5 / Temporary Worker and Tier 1 / Global Talent routes will all need to provide evidence as required by the Immigration Rules when they come to extend their leave and apply for indefinite leave, including from employers.

If the employer has properly recorded any reductions in salary due to legally organised industrial action, then for Skilled Workers no further evidence should be necessary, although it could be requested.

While the strict requirements in terms of absence from work/minimum salary thresholds do not apply in the other categories listed above (Tier 5 / Temporary worker and Tier 1 / Global Talent visa holders), it would be sensible for those who those subject an earnings/financial requirement which will be impacted by legally organised industrial action to obtain evidence of their involvement.

Again, if you have specific questions relating your personal circumstances, seek legal advice.

T2/5 (Skilled Worker/Temporary Worker) 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 S4.10 of the Sponsor Guidance for skilled/temporary workers states that migrants sponsored under these routes 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 the requirement to cease sponsoring is the taking part in strike action as part of a legally organised industrial action (see paragraph S4.13).

The reduction in salary as a result of taking part in legally organised industrial action does need to be reported but is not a reason for the sponsor to stop sponsoring the employee (see paragraph S4.16).

What obligation does the employer have to report strike absences correctly?

Where an absence is due to legal strike action, the sponsor employer will not have to report absence but does have to report any consequential salary reductions.

If you transfer jobs/change your sponsor while remaining on a Tier 2/5 (Skilled Worker/Temporary Worker) 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?

Skilled Worker 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. As noted above, 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 9.30.1 of the Immigration Rules.

These absences include lawful 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 9.31.3 of the Immigration Rules).

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 /Skilled Worker 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.

We also encourage Skilled Worker visa holders to maintain an accurate record of their own.

Global Talent visa holders and other visa categories

How are those on the Global Talent Visa route (Tier 1) affected if they participate in lawful industrial action?

A person with leave under the Global Talent Visa (GTV) route must have an Endorsement from a relevant body. It is a requirement for those who have been endorsed as a researcher, to actively participate in a relevant field in a university research institute or industry.

To extend permission to stay in the UK under the GTV route, either by way of an extension under the GTV route or for ILR, the applicant must have earned money in the UK during their last period of permission to stay and the earnings must be linked to the expert field in which they were endorsed (or related to the subject matter of their prize if they applied under Prestigious Prizes sub-category).

There is no fixed amount that must have been earned. Therefore, if the applicant's salary is reduced due to participation in lawful industrial action, this will not impact on meeting this requirement as long as they can still show that the money was earned in the relevant field.

There is no specified evidence or minimum level of earnings/minimum salary threshold for the GTV route, but suggested evidence includes, amongst others, payslips or letters from employers confirming the earnings. Where the applicant is endorsed as a researcher and is funded by an institution, then suggested evidence includes a letter from the employer confirming the funding by the institution and that details of what the funding is for and that it relates to the relevant field.

The applicant does not need to reapply for an Endorsement when extending or seeking indefinite leave, but to extend, the Endorsement must not have been withdrawn by the endorsing body. The endorsing bodies are responsible for setting their own requirements for individuals to meet and those requirements are linked to the individual's international standing in their chosen field. An Endorsement can be withdrawn but that would be on the basis of the individual not meeting the requirements for an Endorsement rather than on the basis of conduct, such as taking part in legally organised industrial action, in the UK.

Therefore if participating in legally organised industrial action, there is no impact through absence from employment as long as when the applicant comes to extend/settle they can show that they did participate in a relevant field in a UK research institute or industry and earn money in the UK for work linked to their expert field. This will need to be evidenced.

If you have specific questions or concerns relating your personal circumstances, seek legal advice.

What about those on family visas?

There is no requirement that a person with leave under Appendix FM as a partner or parent is employed, therefore there are no specific exemptions/reductions if taking part in legally organised industrial action.

When seeking to extend leave or apply for indefinite leave to remain as a spouse/civil partner/unmarried partner/parent under Appendix FM there is, however, a financial requirement. This can be met in various ways, including but by way of employment income, cash savings, pension income, rental income, and others.

If relying on employment income to meet the requirement, then the applicant (and/or their partner) must earn a gross annual income of £18,600. This income can be joint income. The immigration rules and guidance do not provide for any reduction in this figure on the grounds of taking part in legally organised industrial action. This figure may increase if there are dependent children also included in the application.

If relying on employment income, the evidence required and basis for calculating the income varies depending on how long the applicant has been with the employer:

• where the applicant/their partner has been with the same employer for at least six months at the date of application and earns £18,600 gross per annum or more they will need to provide:
  • payslips and their bank statements (amongst other evidence) for the preceding six months to evidence that they earn at/or above this level
  • they will also need to provide a letter from their employer which confirms their salary, amongst other matters, along with a letter from their employer which confirms their salary, amongst other matters. If their salary has varied over the last six months, the Home Office will take an average of their earnings over the preceding six months and multiply by 12 to check if it is equal to or in excess of £18,600.
• if the applicant has been with the employer for less than six months, they will need to provide evidence:
  • which shows that the applicant and/or their partner has actually earned £18,600 gross per annum in the 12 months preceding the date of application
  • they will also need a letter from their employer confirming their salary.

If the applicant's salary is significantly reduced in the six-month period before making an application, this could impact on the success of an application, particularly if they are not able to meet the financial requirement. It may be, however, their income combined with their partner's income or their partner's income alone would be sufficient to meet the test or that they can meet the financial requirement through other sources.

If you have specific questions relating your personal circumstances, seek legal advice.

How are those with leave granted on humanitarian protection visas affected?

There is no requirement to work or meet a financial requirement if a person has been granted leave on protection grounds. As long as the action is lawful, there should be no impact on a humanitarian visa if a person takes part in legally organised industrial action.

Tier 4 / Student visa absence

The guidance for Tier 4 / Student 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'.

Can Tier 4 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 does not attend a 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.

If you have any concerns regarding your demonstrated support for striking staff we suggest you contact the Union and also seek legal advice.

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

Universities have very little discretion over reporting absences. The Home Office Student Sponsor Guidance 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.

Sponsorship may be withdrawn by a sponsor, and in some circumstances must be withdrawn, if an employee is considered to be in breach of contract. Sponsored Skilled Workers, Temporary Workers and those on the Global Talent Visa route should seek legal advice if concerned about participating in action that may be considered a breach of contract by the employer.

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

Marking and assessment boycotts

What do migrant members facing deductions as part in the marking and assessment boycott need to know?

Migrant members can participate fully in lawful strike action, including the marking and assessment boycott.

The Immigration Rules are clear that an absence or a reduction in salary for participation in lawful industrial action - including action short of a strike such as a marking and assessment boycott - is not grounds for the ending of the Certificate of Sponsorship nor a refusal of ILR for sponsored Skilled Workers

However, while UCU would normally advise members that they do not need to inform employers in advance of their intention to take industrial action, we do recommend that you inform your employer at the appropriate time of any absences for strike action or action short of strike in the same way as you report other absences. This should be as soon as possible after beginning participation in the action -ideally on day 1 - to ensure that employer records of reasons for absence / reduction in salary are correct.

We also strongly suggest that you keep a record of all absences, including strike related absences and any that relate to a marking and assessment boycott.

Your employer has a duty to report all reductions in salary to the Home Office and, consequently, you should expect it to do this. The Home Office Guidance also suggests that the period of absence for a permitted reason should be reported. Accordingly, you may find that your employer does this (see Part 2 S4. 28). For sponsored Skilled Worker members, your employer should do this through the Sponsorship Management System at the time of the action or subsequently.

Employers are required to report reductions in salary in the following circumstances which constitute permitted absences. Your sponsoring employer does not have to stop sponsoring you if you are absent without pay or on reduced pay for any of the following reasons:

• statutory maternity leave
• statutory paternity leave
• statutory parental leave
• statutory shared parental leave
• statutory adoption leave
• sick leave
• assisting with a national or international humanitarian or environmental crisis, provided you agreed to the absence for that purpose
• taking part in legally organised industrial action
• jury service
• attending court as a witness

It is also important to note that the rules on permitted absence/reduction in salary apply to the Skilled Worker visa holder only, not to dependents. This is dealt with in a separate answer.

We recommend taking legal advice if you have any concerns about your own position and making an extension or ILR application.

For members with visas that permit work but who are not sponsored Skilled Workers, a reduction in salary may impact the ability to meet the requirements of an extension or ILR and in such circumstances, we recommend taking legal advice in advance of making an application. See separate answer also.

Deductions/reductions in salary for non- Skilled Worker/employer sponsored members and visa extension applications - what do members need to know? (updated 7 May 2023)

Members are no doubt aware of the requirement for those on family visas (Appendix FM) to meet a minimum financial threshold when making visa applications. This can be met in various ways, including but not exclusively limited to employment income, cash savings, pension income, rental income, and others.

If relying on employment income to meet the requirement, then the visa applicant (and/or their partner) must earn a gross annual income of £18,600. This income can be joint income. The UK Immigration Rules and Guidance do not provide for any reduction in this figure on the grounds of taking part in legal industrial action.

Members should be aware that if relying on employment income, the evidence required and basis for calculating the income varies depends on how long the employment has been:

• If the visa applicant/their partner has been employed by the same employer for at least six months at the date of application and earns £18,600 gross per annum or over, then they will need to provide payslips and their bank statements (amongst other evidence) for the preceding six months to evidence that they earn at/or above this level.
• They will also need to provide a letter from their employer who confirms their salary, amongst other matters, along with a letter from their employer who confirms their salary, amongst other matters. If their salary has varied over the last six months, the Home Office will take an average of their earnings over the preceding six months and multiply by 12 to check if it is equal to or in excess of £18,600.
• If the visa applicant has been with the employer for less than six months, they will need to provide evidence to show that the applicant and/or their partner has actually earned £18,600 gross per annum in the 12 months preceding the date of application. They will also need a letter from their employer confirming their salary.
• If the visa applicant's salary is significantly reduced in the six-month period before making an application, this could impact the success of an application if not able to meet the financial requirement depending on the applicant's circumstances.
• It may be, however, that income combined with a member's partner's income or their partner's income alone would be sufficient to meet the test or that they can meet the financial requirement through other sources.

Members should also be aware that some visas have a condition which prohibits "recourse to public funds" (including family visas) and so it is vital that members seek legal action when considering claiming any social security benefits, such as statutory maternity or paternity pay.

Reductions in salary may be for a number of reasons and we advise members to seek legal advice if you have a concern that your own or your spouse/partner's reduction in salary may have a detrimental effect on a visa extension or ILR application

What reporting duties do I have? Ditto my employer?

As a sponsored worker (Tier 2 or Skilled Worker) you have a duty to ensure that you comply with the conditions of your sponsored work. There are no reporting duties that you have to the Home Office ('HO') in the way your employer does. However, you do have a duty to provide information to the HO when making an application (such as for ILR) if requested and your application must be submitted truthfully and without deception.

Your employer has various reporting duties relating to sponsored workers which include but are not limited to:

1. if a sponsored worker is absent without permission for 10 consecutive days or more, the absence must be reported within 10 working days of the 10th day of absence
2. unauthorised and any absences without pay for more than 4 weeks UNLESS the absence is for a reason allowed within the Immigration Rules
3. changes in pay/salary
4. changes in location of employment
5. if you are no longer being sponsored by them.

Does my employer have to report 'permitted absences'?

Yes. The latest changes to the Guidance for Sponsors (April 2023) states that such absences should be reported notwithstanding the fact that they are permitted. This should be done via the Sponsor Management System ('SMS'). We suggest that you keep an independent record of all absences and ensure that your employer has reported these correctly.

Is participation in the marking and assessment boycott an 'absence'?

This will depend on how the employer treats the employees' failure to comply with their contractual duties. However, so long as you are performing all your other contracted duties participation in the marking and assessment boycott is unlikely to be an absence from the workplace. Notwithstanding this, we suggest that you inform your employer that you are participating in the marking and assessment boycott and that you keep a record of all absences or deductions from salary, if any, which occur as a consequence of your participation in this action.

Are there any consequences (i.e. sponsorship/ILR applications) for Tier 2/Skilled Worker employees' participating in a marking and assessment boycott where the employer may consider them to be in breach of their contract and withhold pay for a substantial period?

See above. Even if the marking and assessment boycott is covered by a ballot, is lawful industrial action and is considered action short of a strike (ASOS), if pay is withheld then this must be reported by your sponsor. Absences or reductions in salary as a result of lawful industrial action are permitted under the Immigration Rules, but we recommend taking legal advice if you have any concerns about your own position and making an extension or ILR application.

Please note that the information above is provided for general guidance purposes and should not be relied on as legal advice. If you have specific questions or concerns about your own circumstances we suggest you seek legal advice.