As well as the usual Right to Work checks that all employers should perform when hiring staff, there are additional document checks specifically relevant when hiring international students holding Tier 4 (Student) Visas.
Employers must carry out prescribed document checks in order to avail themselves of the ‘statutory excuse’ and avoid the possibility of a civil penalty for illegal employment and criminal prosecution.
The statutory excuse will only protect employers if they have obtained the relevant documents, carefully checked them to ensure that the employee has the relevant right to work and retained a copy of the relevant pages for two years after the employment has come to an end.
Tier 4 (Student) Visas are often subject to unique working restrictions that permit international students to work limited hours during the school semester and an unlimited period when they are not studying.
The Home Office’s ‘An Employer’s Guide to Right to Work Checks’ outlines the further checks that employers must carry out when employing international students.
Why hire international students?
For international students, the opportunity to gain work experience in the UK can be seen as one of the major attractions of studying abroad.
Many employers are dissuaded from hiring international students by the perceived transience of their leave to remain in the UK. There is a reluctance to invest resources and training on international students that are likely to return to their homeland at the conclusion of their studies.
In fact, the switch from a Tier 4 to Tier 2 (General) Visa is a streamlined process that avoids much of the red tape usually associated with hiring foreign employees.
Four years ago, the Tier 1 Post-Study Visa, which allowed international students to live and work in the UK for two years at the completing their studies, was abolished.
In place of that visa, students who are offered a suitable graduate position before the expiry of their Tier 4 (Student) Visa can now switch to a Tier 2 (General) Visa and avoid many of the restrictions that would otherwise apply.
The employer does not have to advertise the job locally before offering a position to an international student and the job offer is not subject to the nationwide annual limit that other Tier 2 Visas are subject to.
Students are also exempt from the new annual immigration skills charge of £1,000 and, because they apply as ‘new entrants’, the minimum salary threshold is only £20,800.
Additional document checks when hiring international students
Most international students holding Tier 4 (Student) Visas are permitted to work only a restricted number of hours during their studies, but can work on a full-time basis during their vacation periods or during any period between the completion of their studies and the expiry of their visa.
Any restriction that applies will be explicit on the visa document itself, which must be checked carefully by the employer.
Organisations hiring international students subject to work restrictions are required to check and retain some evidence of their academic term and vacation dates.
If a Tier 4 employee exceeds the maximum number of hours they are permitted to work during any week of the school term, the employer will be unable to rely on the statutory excuse and is liable to receive a civil penalty and, as a result of recent amendments, will now face the possibility of criminal prosecution.
The Home Office’s Guide considers the following documents to be acceptable:
- printouts from a student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study;
- a copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or
- a letter addressed to you as the employer from the education institution confirming the term time dates for the student’s course.
In most cases, the student will be able to produce a website printout. A letter will only be required in exceptional cases, where, for example, a student follows a unique course timetable that differs from the standard.
Employers should verify that the document provided is authentic. If a printout from a website is provided, the employer should go to the link and confirm that it is genuine.
If the document provided contains the semester times for the entire period of study, it will cover the employer for that complete period. Alternatively, timetables will need to be checked intermittently.
Right to Work checks on international students must also include permission from any sponsoring home country or agencies of their studies in the UK.
International students only maintain the right to work while they are following or have completed the course of study as outlined in their visa. If an employer becomes aware that a student has dropped out of the course, they may lose their ‘statutory excuse’.
In some cases, organisations may employ students as part of a work placement, which forms an integral part of the course that they are studying.
Employers are advised to retain the written agreement that they have with the educational institute, to demonstrate that this work placement does not exceed the maximum time that is permitted for this activity.
At DavidsonMorris we routinely work with employers to ensure their recruitment policies are compliant with their obligations. For more information about employing international students, or other business immigration and compliance related issues, please contact us for advice.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals