Employers should be aware that there are a number of restrictions in relation to employing non-EEA nationals who are studying in the UK with leave under Tier 4 (General). In some cases, Tier 4 students may not be permitted to undertake the role and employers should take care that they are following the rules in full and not inadvertently employing a student unlawfully.
If a student is working without permission or in breach of their Tier 4 conditions, the employer may face a civil penalty of up to £20,000. In addition, if an employer is also a Tier 2 sponsor, the Home Office may issue the sponsor with a sponsor action plan, downgrade its sponsor licence or, at worst revoke the sponsor licence. This would severely limit an employer's ability to employ non-EEA nationals.
What work may Tier 4 students undertake?
In most cases students who have leave under Tier 4 (General) to undertake degree level courses may work, subject to certain restrictions. In most cases, such students may only work for a maximum of 20 hours per week during term time. Students doing a course below degree level should be able to work 10 hours during term time. However, check the conditions stated on the biometric residence permit carefully as there are some exceptions.
"Week" means any 7-day period starting on a Monday, so if the student works irregular hours and/or has more than one employer, the student and employer(s) will need to keep detailed records of how many hours the student works each day in order to ensure the student does not exceed the limit.
Students studying for a degree may usually work full time during vacations and after their course has ended until their leave expires, as the period at the end of the course is considered vacation time.
Broadly, students are not allowed to work as a professional sports person (including as a sports coach), as an entertainer or as a doctor or dentist in training.
Importantly, Tier 4 students are not permitted to fill full-time permanent vacancies, unless each of the following applies:
- The student has successfully completed a course at degree level or above at a Tier 4 sponsor that is a Higher Education Partner (‘HEP’) (which applies to most UK universities), with a track record of compliance;
- The student has submitted a Tier 2 application supported by a Certificate of Sponsorship assigned by a licenced Tier 2 sponsor before their Tier 4 leave has ended (and before any appeal against that decision has been determined);
- The student will be employed in the role for which that Certificate of Sponsorship was assigned; and
- The student is yet to receive a decision on their Tier 2 application.
If the individual is on the Doctorate Extension Scheme other conditions also apply. Also, if their work with you is part of a work placement then different conditions apply.
What is a permanent vacancy?
There is no definition of a permanent vacancy in the Immigration Rules. We recently contacted the Home Office about this and they said that the commonly understood definition of the term would be applied, i.e. a job role which is ongoing and has no specified end date. They also stated that fixed term appointments generally have a specific end date so would not usually be considered to be permanent.
Therefore we recommend that if you hire a Tier 4 student they should be employed under a fixed term contract and not an indefinite contract.
Restrictions on self-employment
It is also worth bearing in mind that in most cases students may not undertake self-employment or other business activity so should not be engaged as freelancers, contractors or consultants.
Right to work checks
As with all employees, if you employ an individual in the UK on a Tier 4 (General) visa, you will need to conduct a right to work check in accordance with the Home Office guidance prior to the individual’s first day of work. This is in order to obtain a statutory excuse against the imposition of a civil penalty, if the individual is later found to be working illegally in the UK.
This usually entails checking and copying the individual’s biometric residence permit and passport with the aid of the Home Office right to work checklist, which is available at this link: https://www.gov.uk/government/publications/right-to-work-checklist.
However, if you are employing students, you also need to obtain evidence of their term and vacation dates so that you are able to confirm what hours they are able to work.
Comment
Employers should take care when employing students and ensure that the student will not be filling a permanent full time role unless the company will be sponsoring them under Tier 2 (General) and the individual is switching in-country from Tier 4 to Tier 2 (General) to work in that role. In those circumstances, following completion of their degree course, while the Tier 2 application is pending, they may work full time in that permanent role.
Employers should also ensure they obtain and retain details of the student’s term and vacation dates and that they keep details of hours worked by the students to ensure that they are not working for more than 20 hours per week in term time. Consider including specific wording in the contract requiring the student to inform you if they are undertaking any other job and to provide details of the hours worked each week in that other job. We recommend making managers aware of any restriction on the amount of hours that an individual may work, and where possible, restrictions should be entered on any rota software to prevent an individual exceeding their permitted hours. Managers should also be cautious when offering overtime.
Take particular care when employing PhD students as they do not tend to have vacations in the same way as other degree students and may therefore only be able to work 20 hours per week for all or most of the year.
Kerry Garcia