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Welcome news for sponsored workers who go on strike

Welcome news for sponsored workers who go on strike

Taking part in strike action can be stressful enough. But for migrant workers who are sponsored by their employer, striking has also had the potential to place their immigration status in the UK at risk.

This is because the Home Office’s position has been that unpaid absence from work due to strike action amounts to an unpaid absence under the sponsor guidance. Sponsors are required to terminate the sponsorship of anyone who is absent from work for more than four weeks per calendar year on an unpaid basis. This is unless an exception as outlined in the sponsor guidance applies.

The exceptions to date have been for:

  • maternity leave
  • paternity leave
  • adoption leave
  • shared parental leave
  • long term sick leave
  • leave with the sponsor’s permission to assist in a national or international humanitarian or environmental crisis

I covered this issue back in February when the strikes by members of the University College Union were making headlines.

New Home Secretary, new approach

The new Home Secretary confirmed on 12 July 2018 that he would change the Home Office’s position. Sure enough, the guidance for sponsors under Tiers 2 and 5 was updated last week. It now confirms at paragraph 26.24 that sponsors do not need to terminate sponsorship when a worker has reached four weeks unpaid leave due to one of the exceptions (listed above) or “where the migrant is taking part in strike action as part of legally organised industrial action”.

What is legally organised industrial action?

In order to rely on this new rule, sponsors and sponsored workers will need to ensure that industrial action is lawful.

The Home Office will follow government guidelines outlined here to determine what is and isn’t legally organised industrial action — so it’s advisable that those seeking to rely on the strike exemption do the same.

Going on strike in sympathy with those who work for a different employer, for example, isn’t considered to be lawful strike action and therefore an unpaid absence because of that would not be exempt.

Nichola Carter

Nichola heads the immigration team at Carter Thomas (www.carterthomas.co.uk). A lawyer with 20 years' experience, she also sits on The Law Society’s Immigration Committee and supports the renowned EU Rights Clinic in Brussels. Nichola's main work relates to advising universities, schools and businesses on sponsor compliance, and individuals seeking to invest, work or start a business in the UK. She regularly provides media comment including for the BBC and FT and is happy to be contacted for comment. Nichola tweets from @carternichola and her email is ncarter@carterthomas.co.uk.

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