How are civil penalties impacting the HE sector?

By Tijen Ahmet, Solicitor at SA Law

The government’s challenge to reduce net migration continues and foreign nationals coming to the UK to work and study appear to be an obvious target for the Home Office. 

One way in which the Home Office have sought to directly address the issue is through the introduction of the civil penalty scheme in 2008. This scheme is enforced through the Immigration, Asylum and Nationality Act 2006 imposing immigration fines on any business or organisation who is unlawfully employing non-British/European staff.

Civil penalties are becoming increasingly more frequent as employers are failing to complete comprehensive right to work checks on their staff, prior to the commencement of employment. In the absence of appropriate checks, employers do not have defence known as a ‘statutory excuse’ to avoid liability of fines of up to £20,000 per employee.

Over the recent years, the education sector has been hit by the civil penalty regime costing Higher Education Institution’s (‘HEI’) tens of thousands of pounds and even putting their ability to employ foreign staff at risk. The London School of Business and Finance, University of Bedfordshire and University of West London are some of the recent institutions who have had their sponsor licences suspended and this has impacted their ability to recruit students and employ foreign staff. Whilst universities may not employ a significant numbers of foreign staff under their Tier 2 licence, if their licence is in jeopardy, they may not be able to continue to sponsor their existing international students under Tier 4.

We only need to consider the first statistical release from the Higher Education Statistics Agency (2013-14) to realise what an astronomical impact losing the ability to sponsor foreign students would have on the UK, with 435,000 students a year, from over 180 countries, coming to study in the UK.

While on the surface it may appear obvious whether a prospective employee has a right to work or not, universities, are often, unintentionally, caught out when employing students. For example a PhD student may work part-time as a lecturer in their field of study, and have additional part-time work elsewhere in the university, or even at a different university altogether. This could mean they are working more than their visa allows them to. This is a common occurrence and as education providers you must be conscious of your responsibility to monitor student’s hours of work or you will literally pay the price. Students who are sponsored by a university to study are permitted to work while studying however their ability to work will vary depending on the level at which they are studying.

While on the surface it may appear obvious whether a prospective employee has a right to work or not, universities, are often, unintentionally, caught out when employing students

The general position is that students studying at degree level and above can work no more than 20 hours per week during term time and students studying below degree level can work no more than 10 hours per week during term time. In both cases students are permitted to work full time outside of term time. If you, as a university, are found to be repeatedly employing students who are not allowed to work and face revocation of your licence, you will be prevented from re-applying for a new licence for at least two years which will have a significant financial consequence on the institution as a whole.  

In addition to completing right to work checks, as published in Home Office guidance, universities must have robust measures in place to prevent students from working in excess of the hours permitted by their visa. It is also worth noting that if you become aware of suspected illegal working you should immediately raise this with your HR function to report it to the sponsorship, employer and education helpline to prevent sanctions such as a penalty being issued or in the worst case your licence being revoked. 

In addition to the civil penalty sanctions, key changes were introduced last April to the way in which education providers who recruit foreign students are assessed. The ‘highly trusted sponsor assessment’ was abolished and replaced by the ‘basic compliance assessment’ that institutions need to pass every twelve months. Universities must demonstrate an enrolment rate of at least 90%, a completion rate of at least 85% and a refusal rate of less than 10%. Through experience working directly with the education sector, our advice to HEI’s to maximise their student success rates in particular, is to have:-

  • Vigorous yet practical recruitment procedures and processes in place,
  • A system that checks students have sufficient funds to meet the maintenance requirements,
  • Suitability assessments to establish their intention to follow their chosen course of study,
  • Training for your student compliance staff so they are fully aware of the requirements.

The Home Office themselves state, “Businesses and educational institutions that benefit from the immigration system must ensure they have robust recruitment and compliance systems in place or risk losing their privilege to sponsor workers and students”.

When being issued with a sponsor licence as a HEI you are being given the privilege and responsibility to recruit international students to study and work in the UK. Compliance is therefore essential – not optional. Immigration rules may be complex and ever-changing so considering investment in resources and training for your staff could be the difference between the ability to continue sponsoring students or serious financial and reputational damage.

W: salaw.com

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