Thousands of staff at more than 60 universities around the country have gone on strike, starting today. Some members of the University College Union (UCU), which has called the strike, will be non-EU nationals sponsored under the relevant university’s sponsor licence. Here, I consider the Home Office’s position on whether or not taking industrial action can have implications for a sponsored worker’s immigration status.
Universities, like other sponsors, are required to adhere to fairly strict rules in order to keep their sponsor licence. Some of these rules require unauthorised absences and reductions in pay to be reported. In some circumstances, the sponsor must stop sponsoring the worker.
When must a sponsor report absences from work and could they lead to sponsorship being terminated?
The Home Office has confirmed in an email to my firm this week that:
Absence from work due to strike does count as unauthorised absence (even though there is certain legislation protecting workers for being dismissed if they do go on strike, assuming the strike meetings [sic] the appropriate requirements within that legislation). As such more than 10 days absence due to strike action would require reporting…
Similarly, Home Office published guidance for sponsors states that “if a sponsored migrant is absent from work for more than 10 consecutive working days without permission, you must report this within 10 working days of the 10th day of absence”.
Sponsors must therefore have a system in place to keep track of absences in order to be able to report when the 10th day of any unauthorised absence occurs.
If a sponsored worker is absent from work without pay for four weeks or more, on a cumulative or consecutive basis during any calendar year (1 January – 31 December), and the absences are not of a type permitted by the Home Office, the sponsor must terminate sponsorship.
The guidance says that:
The 4 weeks is worked out according to the migrant’s normal working pattern. An example of this is if the migrant works 3 days per week (3 days x 4 weeks), it would be 12 working days. If a sponsored migrant wishes to take a longer period of other unpaid leave, such as a sabbatical, you must stop sponsoring them and report this…
It confirms that absences without pay that are permitted include long-term sick leave, and where a doctor is taking unpaid leave with the sponsor’s permission to assist with the Ebola crisis.
The Home Office’s email confirms that, if days on strike would take the migrant’s levels of absence from work without pay to more than four weeks during any calendar period, “the employer would need to report that they no longer sponsor the migrant in these circumstances”.
Sponsors and sponsored workers should check if any days off work due to strike action need to be reported and/or if there is a risk that strike action days, added with any other unpaid absences that do not meet an exception, could trigger a requirement to terminate sponsorship. Sponsored workers need to carefully consider the risks of time off work due to strike action that may need reporting or may otherwise have adverse implications for their status.
What about reductions in pay?
The Home Office guidance requires organisation to stop sponsorship if the sponsored worker’s pay is reduced to a level below the rate referred to in the relevant SOC code for the job.
The Home Office’s email confirms, in relation to pay reduced below the required level due to strike action, that:
We would expect the employer to report that they no longer sponsor the migrant in these circumstances. This would also be the case if the salary dropped below the minimum threshold for Tier 2 (i.e. £20,800 or £30,000 depending on the circumstances).
The department has confirmed that temporary reductions in pay due to strike action that do not take the pay below the rate referred to in the relevant SOC code or below the minimum threshold do not need to be reported to it by the sponsor.
Sponsors and sponsored workers should check if any days off work due to strike action could result in a reduction in pay that requires action as outlined above.
Could strike action affect an application for indefinite leave to remain?
This is a question I have been asked on the Free Movement members’ forum.
Even though the Home Office regards absence from work due to strike action as “unauthorised”, there is nothing specific in the Immigration Rules for ILR applications saying that an application could be at risk if the applicant has been involved in strike action.
Whilst there are no reported cases of strike action being used to refuse an ILR application, and any such refusal would certainly be capable of being challenged, there are never any guarantees that the Home Office could not change its policy in the future.
I believe that there is an arguable case that the Home Office’s position in relation to strikes, in the event that adverse action was taken, is potentially unlawful.