The Newcastle upon Tyne Hospitals NHS Foundation Trust. Employment Policies and Procedures. Prevention of Illegal Working Policy

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1 The Newcastle upon Tyne Hospitals NHS Foundation Trust Employment Policies and Procedures Prevention of Illegal Working Policy Version No.: 8 Effective From: 17 May 2017 Expiry Date: 17 May 2020 Date Ratified: 07 April 2017 Ratified By: Employment Policies & Procedures Consultative Group 1 Introduction As an employer, the Trust has a responsibility to prevent illegal migrant working in the UK. As part of an ongoing strategy to improve the way in which illegal working is addressed, the Government changed the law on employing illegal workers in The law on the prevention of illegal migrant working is set out in the Immigration, Asylum and Nationality Act 2006 (referred to in this policy as the 2006 Act ) and became effective from 29 February This policy should be read in conjunction with the Trust s Recruitment and Selection Policies and applies equally to all employees and prospective employees of the Trust. 2 Scope 2.1 This policy applies to all employees and prospective employees of the Trust. 2.2 The Trust will ensure that any actions arising from this policy are made objectively and are free from unlawful discrimination. No employee will receive less favourable treatment on the grounds of their age, disability, race, nationality, ethnic origin, sex, sexual orientation, religion and belief, gender reassignment, marriage and civil partnership or pregnancy and maternity. 2.3 The arrangements covered by this policy are: Those for new starters and the associated pre-employment checks required. Ongoing requirements for those staff who have been granted leave to enter or remain in the UK for a limited period of time. 3 Aims The aim of the policy is to ensure: All staff new into post and all non European Economic Area (EEA) nationals continue to meet the requirements of legislation and the NHS Employment Check Standards. Page 1 of 30

2 All staff removed from employment for reasons related to entitlement to live and/or work in the UK are reported to the Home Office. 4 Duties (Roles and Responsibilities) 4.1 The Executive Team is accountable to the Trust Board for ensuring Trustwide compliance with policy. 4.2 Directorate Managers and Heads of Service are responsible to the Executive Team for ensuring policy implementation. 4.3 Managers are responsible for ensuring policy implementation and compliance in their area(s). 4.4 Staff are responsible for complying with policy. 5 Sponsorship Management System (SMS) 5.1 The SMS is a secure IT system which enables licensed sponsors to manage their licence. The Trust has been awarded a Category A Sponsorship Licence enabling the Trust to issue Certificates of Sponsorship under Tier 2 of the Points Based System. From 6 April 2011 the Trust is only permitted to issue unrestricted Certificates of Sponsorship i.e. to those who currently hold a Work Permit/Certificate of Sponsorship or those who currently hold a visa in a category where it is permitted to transfer to Tier 2 (General). For those who do not currently hold such right to work documents an application must be made by the Trust directly to the Home Office for a restricted Certificate of Sponsorship such applications are considered by the Home Office on a monthly basis. If granted, the restricted certificate is added to the Trust s allocation to be assigned through the SMS. A restricted certificate can only be assigned to the post for which it is granted. A certificate of sponsorship is not an actual certificate or paper document like a work permit. It is a unique reference number that is issued to the migrant worker to enable them to apply for permission to enter if outside the United Kingdom (known as 'entry clearance'), or permission to stay if inside the United Kingdom (known as 'leave to remain'). 5.2 What is the Sponsorship Management System used for? to manage users of the system and to log changes in the Organisation s circumstances view all certificates of sponsorship; create and assign certificates of sponsorship; comply with sponsorship duties such as reporting migrant activity and withdrawing certificate of sponsorship pay for certificates of sponsorship Page 2 of 30

3 for the Trust to apply for renewal of the licence and restricted certificates of sponsorship. 6 Resident Labour Market Test (RLMT) 6.1 To sponsor an individual from outside of the UK under Tier 2 (General) of the points-based system, for a skilled job that is not on the Home Office list of shortage occupations, the Trust will need to first complete a RLMT. A resident worker is a person who is an EEA national or has settled status in the UK within the meaning of the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act Some posts which appear on the shortage occupation list still require completion of an RLMT therefore before advertising a post, Managers must seek advice from the HR Department. 7 Documents That Show a Person s Entitlement to Work The documents that establish someone s entitlement to work are split into two lists. In the case of non-medical staff these documents are checked by the Human Resources Department prior to agreeing a start date. For medical and dental staff, documents must be checked at the time of interview. Where this has not been possible, documents are checked by the Human Resources Department upon commencement of employment with the Trust. The latter is to ensure originals are copied, signed, filed on the employee s personal file and the appropriate data entered into Electronic Staff Record system (ESR). In 2014 the Home Office reduced the list of acceptable documents for right to work checks, including the removal of travel documents, work permits and general Home Office letters. All documents (for the purposes of pre-employment checks) which contain an expiry date must now be current except those showing that the holder is a British Citizen, a citizen of the UK and Colonies having the right of abode/indefinite leave to remain, a national of an EEA country or Switzerland or their family members with permanent residence. The documents that are acceptable to prove an individual s right to work are set out in two lists List A and List B: 7.1 List A (see Appendix A) documents show that the holder is not subject to immigration control, or has no restrictions on their stay in the UK. If the prospective or existing employee produces a List A document (or one of the combinations of documents specified), they can work for an indefinite period. When the appropriate checks on List A documents have been carried out, the Trust will have an excuse against liability to pay a civil penalty. Page 3 of 30

4 7.2 If an employee provides a document or documents from List A, no further checks are necessary for the duration of employment in the post to which they have been appointed. If further internal recruitment activity takes place all documents must be rechecked. Please refer to 8.7 follow up checks below for more details on what repeat checks are required and when. 7.3 List B (see Appendix B) documents demonstrate that the person has been granted leave to enter or remain in the UK for a limited period of time. If the prospective or existing employee provides documents from List B, further followup checks must be undertaken by the Human Resources Department every 12 months. There is a requirement to carry out repeat checks in order for the Trust to have an excuse against liability to pay a civil penalty whenever List B documents are provided. 7.4 The arrangements for establishing the excuse only apply to employees who started working for the Trust on or after 29 February Biometric residence permits (BRPs). Biometric Residence Permits are issued where previously vignettes (or stickers) were placed in passports, although some vignettes are still issued whilst awaiting a BRP (UK Entry Clearance only). This only applies to foreign nationals of countries outside the EEA and Switzerland who are granted leave to remain in the UK. The card is proof of the holder s right to stay, work or study in the UK. These cards are now also issued to migrant workers sponsored under Tier 2 and Tier 4. The roll out of the cards will be phased according to immigration category and those not yet requiring biometric enrolment will continue to receive a vignette in their passport. 8 Complying with the Document Checks 8.1 Undertaking the necessary checks will ensure that the Trust s recruitment practices comply with legislation covering the employment of migrant workers, and ensure the Trust will not be liable for payment of a civil penalty for employing or continuing to employ person(s) illegally. 8.2 Step 1 - Provision of Information A prospective employee (or existing employee, if carrying out repeat checks in the case where an employee has temporary leave to remain) must provide: one of the single documents, or two of the documents in the specified combinations given, from List A; or, Page 4 of 30

5 one of the single documents, or two of the documents in the specified combinations given, from List B. The offer of employment may be withdrawn if the prospective employee cannot demonstrate an entitlement to work legally within 8 weeks of the verbal offer of employment being made. An extension of the timescale will normally be given where a longer period is required for migrant workers coming to work in the UK to obtain registration with their professional body. Employment will be withdrawn for a prospective employee, or terminated in the case of an employee, if the individual cannot demonstrate an entitlement to work legally in the UK. 8.3 Only original documents will be accepted. 8.4 Step 2 Validation of Information The Recruiting Manager and Human Resources must; take all reasonable steps to check that the document is valid. satisfy themselves that the prospective employee or current employee is the person named in the document. check that the documents will allow them to do the work in question. For each document presented for medical and dental staff, the Recruiting Manager at the time of interview, and for non-medical staff prior to a start date being agreed, the Human Resources Department must: check all photographs are consistent with the appearance of the employee. check all dates of birth listed are consistent across all documents and satisfy themselves that photographs correspond with the appearance of the employee. check that the expiry dates of any limited leave to enter or remain in the UK have not passed. check any UK Government endorsements (stamps, visas, etc.) to ensure the prospective or current employee is able to do the type of work being offered or undertaken. ensure the documents are valid and genuine, have not been tampered with and belong to the holder. Where applicable, a translation of the Page 5 of 30

6 document may need to be obtained for pre-employment check purposes although this is not a requirement of the Home Office. seek further documentation if the employee or prospective employee has provided two documents which have different names. (The further document could be a marriage certificate, a divorce decree, a deed poll or statutory declaration). See Appendix A for more details regarding List A and B documents and their combinations. 8.5 Step 3 Copying of Information The Human Resources Department will be responsible for ensuring a copy is taken, with a record made of by whom and the date on which the document was seen, placed on the employee s personal file of the relevant page or pages of all documents presented prior to a start date being agreed. The Human Resources Department will also be responsible for ensuring that the employees ESR record is updated. In the case of a passport or other travel document, the following parts must be photocopied or scanned: a copy must be taken of any page that provides details of nationality, photograph, date of birth, signature, date of expiry, entry clearance or biometric details. any page containing UK Government endorsements indicating that the employee has an entitlement to be in the UK and is entitled to undertake the work in question. All other documents should be copied in their entirety. A record must be kept of every document copied on the employee s personal file and ESR must be updated. Copies of the documents will be kept securely for the duration of the employee s employment on their personal file, and must be kept in accordance with the Trust s Non Health Related Records and Documents Retention Schedules after they cease employment with the Trust. If the Steps 1 3 have been carried out, as detailed, and the Trust is not satisfied that the prospective employee is the rightful holder of the documents they have produced, then the Trust will withdraw the offer of employment. If there are concerns about the validity of the documents presented a member of the Human Resources Department should contact the Home Office Employers Helpdesk for further advice. Page 6 of 30

7 See Appendix B for further details regarding the copying and storing of documents. 8.6 Follow up checks - While the frequency of follow-up checks for employees with time-limited right to work is no longer every 12 months, the Trust will continue with current practice to check annually. The acceptable documents for right to work checks set out in List B provide a statutory excuse for a limited period of time. This list has been separated into Group 1 and Group 2 to clearly distinguish the frequency of repeat checks required depending on the document presented. List B Group 1 contains the documents for which a repeat check is required when the employee s permission to be in the UK and do the work in question expires. Group 2 contains those documents for which checks are required after 6 months with the Home Office Employer Checking Service. 9 Applicant Requires a Certificate of Sponsorship (CoS) If, as result of recruitment activity, the applicant requires a CoS, provided that the position is on the shortage occupation list (SOL) or the RLMT has been satisfied by advertising the post in two recognised publications for 28 days externally, the Human Resources Department will either raise a unrestricted certificate of sponsorship for the applicant or apply to the Home Office for a restricted Certificate of Sponsorship. Since 6 th April 2013, all migrants applying for leave to enter the UK from overseas must be coming to fill a vacancy that is at or above National Qualification Framework (NQF) Level 6 and must meet the rates of pay within the Standard Occupational Classification (SOC) Codes for the particular occupation. The same applies to migrants who are already in the UK under another immigration category who are eligible to switch into Tier 2 (General). This does not mean that the person employed to fill the job must be educated to NQF Level 6, it means that the work that person will do is pitched at that level. (Once the certificate is raised the certificate number will be given to the applicant and they will need to renew or apply for their leave to remain.) Restrictions apply to sponsoring applicants to fill occupations skilled to NQF Levels 3 and 4, please speak to the Human Resources Department for further guidance. From 6 April 2017, those applying to come to the UK for employment under certain SOC codes, and their adult dependants, are required to produce a criminal record certificate from any country in which they have been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years, aged 18 or over. Affected SOC codes are: 1181, 1184, 2211, 2212, 2213, 2214, 2215, 2217, 2218, 2219, 2221, 2222, 2223, 2229, 2231, 2232, 2312, 2314, 2315, 2316, 2317, 2318, 2319, 2442, 2443, 2449 which includes Medical Staff (2211) and Nurses (2231) amongst others. The Human Resources Department will be able to advise if this is necessary for an appointment and will process the request. Page 7 of 30

8 The CoS and leave to remain is unique to the organisation and the post, if an employee changes employers they will require a new certificate of sponsorship. 9.1 Extension of Leave to Enter/Remain Trust employees who are work permit holders and have existing leave to enter or remain granted under the old work permit arrangements are able to extend their leave under Tier 2 but are not required to change their status until their leave to remain expires. To continue in post they will need a CoS which must confirm that the job is at or above the appropriate level for the job and is paid at or above the appropriate rate for the job (where their leave was granted under the rules in place before 6 April 2011). For individuals who are already working in the UK either under Tier 2 (General), Tier 2 (Intra-company Transfer) or a Work Permit, where their leave was granted under the rules in place before 6 April 2011, the job must be at or above S/NVQ level 3 and paid at or above the appropriate rate for the job. Individuals whose CoS with the Trust under Tier 2 (General) is due to expire need to request a further unrestricted Certificate of Sponsorship from the Trust. It is the individual s responsibility to apply to extend their leave to remain. Where the Trust wishes to extend the contract of an existing employee, a new CoS must be assigned to allow the individual to extend their leave to remain. Under Tier 2, the requirements for extension applications are similar to those for initial entry: The migrant has been assigned a CoS for their continued employment in the same role (or another role within the same SOC code) before making an application for an extension of stay. The job continues to be at the appropriate skill level. The migrant will continue to be paid at or above the appropriate rate for the job. There is no need to carry out a RLMT before assigning a CoS to a migrant who requires to extend their stay for the purposes of an extension to their contract. A migrant s permission to stay will only be granted up to the maximum time allowed under the relevant Tier and/or sub-category. The Trust will not, therefore, be able to assign a CoS under Tier 2 beyond this maximum time limit. 10 Employment of Postgraduate Doctors and Dentists 10.1 Students may take up a recognised foundation programme as a postgraduate doctor or dentist in the UK under Tier 4 (General).For postgraduate doctors the only sponsor is the UK Foundation Programme Office (UKFPO). Page 8 of 30

9 For postgraduate dentists there are two sponsors, the Yorkshire and Humber Strategic Health Authority and the South London Local Education and Training Board (also known as South London Health Education England) A student who wishes to take a recognised foundation programme under Tier 4 (General) must have successfully completed a recognised UK degree in medicine or dentistry at; an institution with a Tier 4 (General) student sponsor licence; or a UK publicly funded institution of further or higher education; or a genuine UK private education institution which maintains satisfactory records of enrolment and attendance; and have previously been granted permission to stay in the UK as a student (under either Tier 4 (General) or the student rules that applied before 31 March 2009), for the final academic year and at least one other academic year of their studies leading to that degree The General student can get a maximum period of three years permission to stay as a General student to do a recognised Foundation Programme as a postgraduate doctor or dentist 10.5 To be sponsored (Tier 4) by the UKFPO a Foundation Doctor must work full time in a Foundation Programme If a Foundation Doctor has a Tier 4 Visa granted on or after 5 October 2009 the doctor cannot commence the Foundation Programme before the new Tier 4 visa is approved. 11 Employing Nationals from the European Economic Area (EEA) 11.1 Nationals from the countries detailed in the list below which are part of the EEA can live and work in the UK without restrictions: Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Irish Republic Italy Latvia Liechtenstein Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Romania Slovakia Slovenia Spain Sweden UK Page 9 of 30

10 11.2 Their immediate family members are also able to work without restriction in the UK while the family member is legally residing and working here. Documents must still be checked to demonstrate an entitlement to work As defined by the Home Office: non-eea family members of an EEA or Swiss National who have the right of residence in the UK are: your husband, wife or civil partner; your children or grandchildren (or the children or grandchildren of your husband, wife or civil partner) who are under 21 years of age or are dependent on you; and the parents or grandparents of you and your husband, wife or civil partner, if they are dependent on you. (If the EEA or Swiss National is a student, only their husband, wife, or civil partner and dependent children have a right of residence.) Other relatives - including extended family members such as brothers, sisters and cousins - do not have an automatic right to live in the UK. To be considered, they must be able to show that they are dependent on the EEA or Swiss National. If the EEA or Swiss National and their partner are not married or in a civil partnership, they must be able to show that you are in a durable relationship with each other. 12 Employing Croatian Nationals Since 1st July 2013, as European Economic Area (EEA) nationals, Croatians have been able to move and reside freely in any European Union (EU) member state. However, member states may apply restrictions on access to the labour market for a transitional period. The United Kingdom (UK) is applying such transitional restrictions. These are applied by the Accession of Croatia (Immigration and Worker Authorisation) Regulations Under these Regulations, a Croatian national who wishes to work in the UK and who is subject to the worker authorisation requirement will need to obtain an accession worker authorisation document (permission to work) before starting any employment. An accession worker authorisation document will normally take the form of a worker authorisation registration certificate (or purple registration certificate ) which the Croatian national must apply for. This document will contain an endorsement restricting the holder s employment to a particular employer and category of employment. Those qualifying for a purple registration certificate will generally be skilled workers who meet the criteria for the issue of a certificate of sponsorship under Tier 2 of the Points Based System. Page 10 of 30

11 The work carried out by a Croatian national must be for a licensed sponsor and they must have a valid CoS to support their application for a Purple Registration Certificate. The key differences between sponsoring a Croatian national and a non-eu national are that: Croatian nationals can work in jobs which are skilled to National Qualifications Framework (NQF) Level 4 and above; There is no maintenance requirement for Croatian nationals so they do not have to prove that they have any specific amount of funds available when they apply for worker authorisation; Croatian nationals may make their application in the UK because they can move and reside freely in any EU member state so do not have to apply from overseas for entry clearance; Once a Croatian national has worked lawfully in the UK for a continuous period of 12 months, they have free access to the UK labour market and no longer need to be sponsored. This means that the Trust will not normally have to sponsor a Croatian national under Tier 2 for more than 12 months. Please note that a period of work is classed as being continuous if the migrant was employed at the beginning and end of the period and there have been no breaks in the employment totalling more than 30 calendar days. The employment can be with one or more employer. 13 Employment of Refugees and Asylum Seekers 13.1 An asylum seeker is a person who has made an application for asylum but whose application is yet to be decided upon. Since 2003 asylum seekers do not have the right to work in the UK Only a very small number of asylum seekers will have the right to work, in such cases it will state employment permitted or allowed to work on their Application Registration Card (ARC). To establish a statutory excuse the Human Resources Department must verify an employment permitted ARC or work allowed with the Employer Checking Service. This is a List B document Asylum seekers who are successful in their asylum claim are awarded Refugee Status A refugee is a person who has had a positive decision on their claim for asylum under the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention). Individuals who do not meet the Refugee Convention s criteria for Refugee status may qualify either for Humanitarian Protection (granted for five years) or Discretionary Leave to Remain (granted for up to three years). In the UK, refugees have the right to work and are able to Page 11 of 30

12 move and reside freely. Refugees with Humanitarian Protection or Discretionary Leave to Remain are entitled to apply for further leave before their current leave expires; they continue to be entitled to work during this period of awaiting the decision on their application Refugees are issued with an Immigration Status Document (ISD) when they are granted leave to remain in the UK. A refugee can also apply to the Home Office for a Travel Document. Before April 2004, the Home Office also issued a letter when a refugee was granted leave to remain. The following documents evidence a refugee s entitlement to work in the UK: List A ISD the ISD stating that the holder has Indefinite Leave to Enter or Remain and an official document issued by a Government agency such as HM Revenue and Customs (HMRC) or Department for Work and Pensions (DWP), or a previous employer and giving the person s permanent NI number and name e.g. P45, P60 or National Insurance card. List B ISD the ISD and an official document issued by a Government agency, such as HMRC or DWP, or a previous employer and giving the person s permanent NI number and their name (examples above). List A Home Office Letter The Home Office Letter stating that the holder has indefinite leave to remain and an official document issued by a Government agency, such as HMRC or DWP, or a previous employer and giving the person s permanent NI number and their name (examples above). List B Home Office Letter The Home Office Letter and an official document issued by a Government agency, such as HMRC or DWP, or a previous employer and giving the person s permanent NI number and their name (examples above). There are three types of Travel Documents: 1) The Convention Travel Document (blue colour) which is issued to people granted refugee status and entitles the holder to travel to any country except their country of origin i.e. from where the holder fled persecution. 2) Certificate of Identity (brown colour) which is issued to people granted Humanitarian Protection and Discretionary Leave. On 17 March 2008 this changed its name to the Certificate of Travel and changed in colour from brown to black. The brown document can be used until it expires. 3) Stateless person s travel document (red colour) List A Travel Documents stating that the holder has indefinite leave to enter or remain in the UK (i.e. no time limit on the holder s stay in the UK) List B Travel Documents the travel document Page 12 of 30

13 13.6 Refugees who have been granted indefinite leave to enter or remain in the UK should be able to produce documents from List A. When verified and copied the Trust will have a statutory excuse for the remainder of the employee s employment. 14 Employing Turkish workers already residing in the UK 14.1 The European Community Association Agreement (ECAA) with Turkey provides Turkish nationals who are already working legally in the UK with certain rights when they need to extend their stay in the UK. Individuals will only be accepted as a Turkish ECAA worker if they meet the criteria set by the Home Office. They can: only apply to extend their permission to stay and work in the UK for the same employer (if a job is available) after they have worked in the UK for a period of one year. change employers after they have worked in the UK for three years provided they are continuing to work in the same occupation. have full access to the UK labour market and will be free to work in any type of job for any employer after they have worked in the UK for a period of four years If the individual meets the criteria, the Home Office will grant them permission to stay as a Turkish ECAA worker and they will be issued with a vignette in their passport and receive a letter confirming their status. As paragraph 7.5 above, some individuals will have been granted indefinite leave to remain and will require a BRP The Human Resources Department must retain a copy on the employee s personal file. The Trust will be able to use this documentation to check a potential or existing employee s right to work in the UK. A Turkish ECAA worker visa does not give the individual an automatic right to apply for indefinite leave to remain and any application to the Home Office for indefinite leave to remain will be rejected. The duration of leave granted to an individual will be between 12 and 36 months. At the end of the granted period, another application must be made if a further extension is required. A Turkish worker will, however, be eligible to apply for indefinite leave to remain after they have legally resided in the UK for a period of ten years. Page 13 of 30

14 15 Employment of Students 15.1 Students from outside the EEA who are over the age of 16 are permitted to take some employment in the UK, providing their conditions of entry to the UK allow this There are strict conditions on the type of work a student can undertake while they are studying in the UK. A student who is undertaking a course of degree level study or above, or a foundation degree course can be employed providing they have valid leave of entry: for up to 20 hours per week only during term time. (An exception to this is where a student may have been placed to meet the definition of a sandwich course or internship). full-time, outside of their term time only and following completion of their course. Students granted leave under the Immigration Rules in force prior to the points based system (31 March 2009) can undertake a course of study below degree level with the conditions listed above. Student granted leave under the Immigration Rules in force from 31 March 2009 under the points based system (Tier 4 students) who undertake a course of study below degree level can be employed providing they have a valid leave of entry: Students who applied for permission to come to or stay in the UK before 4 th July 2011 Students in this category who are studying for a foundation degree course or degree level course at Qualification Credit Framework (QCF) or NQF level 6, or equivalent or above, can work 20 hours per week during term time and full-time during non term time. Students in this category who are studying below QCF or NQF, level 6, or equivalent (with the exception of foundation degree courses) can work up to 10 hours per week during term time and full-time during non term time. Students who applied for permission to come to or stay in the UK after 4 th July 2011 Students in this category who are studying at degree level (QCF or NQF level 6, or equivalent, or above) and with a recognised body or a body that receives public funding as a higher education institution can work up to 20 hours per week during term time and full-time during non term time. Page 14 of 30

15 Students in this category, who are on a short-term study-abroad programme in the UK, whilst enrolled with an overseas higher education institution, can work up to 20 hours per week during term time and full-time during non term time. Students in this category who are studying at below degree (QCF or NQF level 6, or equivalent) and with a recognised body or a body that receives public funding as a higher education institution can work up to 10 hours per week during term time and full-time during non term time. Students in this category who are studying at a minimum of QCF or NQF level 3, or equivalent with a publicly funded further education college and where the publicly funded further education college is a highly trusted sponsor can work up to 10 hours per week during term time and full-time during vacation. If the publicly funded further education college is not a highly trusted sponsor, the minimum level the student can study at is QCF or NQF level Students on short courses of six months or less cannot work during their course and, in some cases, but not all, students who do not obtain entry clearance before coming to the UK Students who have entered the UK as student visitors are not allowed to work The onus remains on the student, as it does for all prospective employees, to demonstrate that they are able to work legally. The following paperwork must be obtained prior to the student commencing work: A letter from the University confirming: o That the individual is a student with them o When the individual commenced with them as a student o What level the individual is studying at o Confirmation of the term dates for their particular University o Whether the individual is studying part-time and full-time o When the individual obtained their visa o Is the University/place of study a highly trusted sponsor The individual s passport and visa a copy of the passport and visa must be taken for the individual s personal file Students from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia and Slovak Republic may need to register to work in the UK during their first 12 months. This must be done within one month of starting work, however, no permission is needed before the student begins to work It is accepted that a postgraduate course may involve research work as part of course requirements. Researchers who are specifically employed by an institute will require a work permit or certificate of sponsorship, whereas Junior Research Page 15 of 30

16 Fellows in receipt of scholarships are essentially treated as students and are subject to restrictions on the hours that they can work A student from outside the EEA must not: Pursue a career by filling a permanent full-time vacancy Be engaged on a permanent contract Engage in business Engage in self employment Provide services as a professional sportsperson or entertainer 15.9 Tier 4 students will be allowed to do a work placement as part of their course of study, as long as the work placement is an assessed part of the course and they are: a) a Tier 4 (General) student studying a course of degree level study or above or b) a Tier 4 (General) student studying a foundation degree course or c) a Tier 4 (General) student studying a course with a highly trusted sponsor or d) a Tier 4 (Child) student who is 16 years old or over A Tier 4 student is not permitted to take a work placement which occupies more than 50% of the course or period of study (except where there is a statutory requirement). There is no specified maximum period for work placements which form part of a pre-tier 4 student s course of study provided the requirements below are met Pre-Tier 4 students (those who applied for leave before 31 March 2009) can do a work placement as part of a sandwich course i.e. a course which includes a clearly defined work placement approved by the institution providing the course. A student is permitted to follow a sandwich course provided: a) the course leads to a recognised degree or to a qualification awarded by a nationally recognised examining body and b) the work placement does not extend beyond the end of the course Tier 4 (General) students who are granted leave to remain for a course that is less than 12 months in duration their family member will not be allowed to work whilst in the UK Family members of students studying for a qualification below degree level, that is not a foundation degree course, cannot work unless they have their own visa. Page 16 of 30

17 16 Medical Training Initiative (MTI) 16.1 The MTI is designed to allow Doctors to enter the UK from overseas to benefit from training and development in NHS services. The scheme is designed to allow overseas Doctors to undertake up to two years of training and experience in the UK The MTI operates under Tier 5 of the Home Office points based immigration system and has the backing of the Medical Royal Colleges, English Postgraduate Medical Deaneries, NHS Employers, Skills for Health and the Department of Health Managers recruiting under this scheme need to contact Human Resources at the outset. 17 Clinical Attachment (Access) / Observership From time to time approval will be given for individuals from overseas to undertake a Clinical Attachment or Observership within the Trust. It is important that managers work closely with Human Resources to ensure that the individual concerned obtains the correct visa and observes the constraints placed on them by their visa and by the Trust s Work Experience (Clinical Access or Observer) and Honorary Contract (including Letter of Access) Policy. 18 Honorary Staff Individuals from overseas who come to work in the UK for an approved sponsor can also hold an honorary contract with the Trust. The individual must provide evidence of their right to work in the UK and a copy must be retained in the individual s file. An individual from overseas who holds an honorary contract with the Trust will be subject to the supplementary work provisions of the Home Office whereby: They are either in a job on the Shortage Occupation List or in the same sector and at the same professional level as the work for which their Certificate of Sponsorship was assigned, and They work no more than 20 hours per week, and Their work is outside of the normal working hours for which their Certificate of Sponsorship was assigned. In addition, they must continue to work for the sponsor in the job recorded on their Certificate of Sponsorship. An exception to these provisions will be Doctors employed under the Medical Training Initiative whereby placements in the MTI scheme might be funded by alternative sources such as the employer or government from the MTI Doctor s home country. Page 17 of 30

18 If the honorary contact holder provides documents from List B (see section 7) to establish their right to work, further follow-up checks must be undertaken by the Human Resources Department every 12 months. There is a requirement to carry out repeat checks in order for the Trust to have an excuse against liability to pay a civil penalty whenever List B documents are provided. 19 Transfer of Undertakings If the Trust acquires staff as a result of a Transfer of Undertakings (Protection of Employment) (TUPE) transfer a grace period of 60 days is granted from the date of the transfer of the business to correctly carry out the first statutory document checks in respect of these new employees. Checks made by the previous employer must not be relied upon, as they will not provide the Trust with a statutory excuse in the event that any workers acquired are working illegally. There is no such grace period for the follow-up checks undertaken to retain the statutory excuse. 20 Reporting Migrant Activity As a licensed sponsor, the Trust must report information or events to the Home Office, within the time limits specified by them. The Home Office will use this information to decide on enforcement action against the migrant worker or the Trust. It is important that any changes are therefore recorded in ESR. There are additional Trust management arrangements to be observed for doctors appointed to stand alone posts on the Foundation Programme and doctors appointed to the VTS Scheme who require a Certificate of Sponsorship and will rotate outside of the Trust during their employment with the Trust. In such circumstances the Trust is required to report through the SMS that the migrant will temporarily be working at a different address for the defined period. In such circumstances Medical HR will confirm a named contact within each external organisation and ensure the contact is aware of the Trusts responsibilities in reporting migrant activity. Other occasions where the Trust has a legal responsibility to report to the Home Office are when: Migrant Arrives for Employment Migrant Does Not Arrive for Employment Migrant Contact Details change Page 18 of 30

19 Other Migrant Details change (e.g. marital status, name, job, site of work or salary (but not job title or annual pay rise), immigration status and that of their dependents). NB. If the migrant worker s salary reduces below the level stated on their Certificate of Sponsorship (other than organisation-wide reductions defined as acceptable in the Sponsor Guidance, or reductions due to maternity or adoption leave), the Trust is required to update the Sponsor Management System (SMS) with a sponsor note. Migrant has Unauthorised Absence Migrant has unpaid sick leave/long term sick leave lasting one month or longer or a change of salary due to maternity, paternity, shared parental or adoption leave. Disciplinary Action taken against a Migrant Employment of a migrant is terminated (by either party) NB. Where there is a suspicion that an employee does not hold appropriate right to work, it is important that no action is taken until the issue is appropriately investigated in accordance with the Trust s Disciplinary procedure. Managers must seek advice from the appropriate Senior HR Manager in these instances. Migrant has breached the conditions of stay in the UK (e.g. criminal activity or terrorism) Changes to Migrant s Employment Circumstances have been made. If the individual changes positions while with the same employer but the Standard Occupation Classification Code (SOC) does not change they do not require a new certificate of sponsorship. However: If the migrant s salary reduces below the level stated on their Certificate of Sponsorship (other than company-wide reductions defined as acceptable in the Sponsor Guidance, or reductions due to maternity or adoption leave), the Trust is required to update the SMS with a sponsor note. A change of employment application will not be required for increases in salary. If the migrant changes jobs within the SOC code from a job which is on the shortage occupation list to a job which is not on the shortage occupation list, a change of employment application will be required. A change of employment application will not be required if the migrant stays in the same job, but that job is removed from the shortage occupation list. Page 19 of 30

20 If a migrant is remaining with the same sponsor but changing jobs to a different SOC code, a change of employment application is required. Change of employment applications are considered against the same criteria as initial applications. This means that, for Tier 2 (General) applications, a RLMT is required unless the new job is in a shortage occupation. It will continue to be a duty for sponsors to report any changes in a migrant s pay, other than those due to annual increments or bonuses, and to report any changes in start / end dates of employment or changes in working location. Sponsors should refer to the Sponsor Guidance for a comprehensive list of reporting duties. If a migrant worker applies for a different post, not on the shortage occupation list, the requirements of the RLMT must be met i.e. the post must be advertised externally to the Trust for a minimum of 28 days and, if the migrant worker is assessed as being the only appointable candidate for the post, a new CoS must be applied for and successfully obtained prior to the migrant worker s commencement in the new post (refer to Recruitment and Selection policies for further information) if the SOC changes. In the case of organisational change which affects a migrant worker, advice must be sought from the appropriate Senior Human Resources Manager. In all of the circumstances above, it is expected that the employee will notify their line manager in the first instance and it is the responsibility of the line manager to then inform Human Resources of the change in status as soon as they become aware, as well as maintaining ESR to ensure accuracy. In the case of medical staff, employees should notify the medical staffing team in Human Resources via the appropriate address or telephone number. The Human Resources Department will then take appropriate action to ensure that the Home Office is informed accordingly. 21 Sponsor Circumstances As a licensed sponsor, it is the responsibility of the Human Resources Department on behalf of the Trust to inform the Home Office of any significant changes to the organisation s circumstances. This would include: Changes to the size or status of the organisation Changes to individuals holding areas of responsibility, i.e..authorising Officer, Contact Officer, Level 1 and 2 Users Page 20 of 30

21 22 Training Training will be provided by the Human Resources Department to managers following implementation of the policy and procedure. 23 Equality and Diversity The Trust is committed to ensuring that, as far as is reasonably practicable, the way services are provided and the way staff are treated reflects their individual needs and does not unlawfully discriminate against individuals or groups. This policy has been properly assessed. 24 Monitoring Compliance with the Policy Standard / Process / Issue Monitoring to identify: a) all appointments are made in accordance with the necessary Right to Work checks required in this policy and documentary evidence is recorded on ESR and in the personal file b) the number of dismissals due to failure to renew right to work documentation within the required timescales Monitoring and Audit Method By Committee Frequency Reporting Director of Heads of Annually on ESR Human Human information Resources Resources meeting 25 Consultation and Review of this Policy This policy has been reviewed in consultation with the Employment Policies and Procedures Consultative Group 26 Implementation of the Policy (including raising awareness) A summary of the key changes will be notified to managers following implementation. Further advice and guidance will be available from the Human Resources Department. 27 References UK Visas and Immigration operational guidance Page 21 of 30

22 28 Additional Documents Dignity and Respect at Work Policy Disciplinary Policy/Procedure Employee Wellbeing Policy Incorporating Attendance Management Procedure Equal Opportunities and Diversity Policy Recruitment and Selection (Non-medical) policy Recruitment and Selection Policy (Junior Medical and Dental Trust Doctor Posts) Recruitment and Selection Policy (Senior Medical and Dental Staff) Work Experience (including Clinical access and Clinical Observer) and Honorary Contracts (including Letter of Access) policy Author: Employment Policies and Procedures Consultative Group Page 22 of 30

23 Appendix A Right to Work Documents To confirm that an applicant has the legal right to work in the UK, the Trust must see one of the documents or a combination of documents as specified in List A, or one of the documents or combinations of documents, specified in List B. No other documents or combinations of documents are acceptable. If a document or combination of documents is provided from List A, there is no need to ask for documents from List B. All documents must be original, valid and current. Photocopies must not be accepted. The documents must show that the holder is entitled to do the type of work being offered. List A The Trust must see one original form of evidence from the single acceptable documents list or a combination of documents as specified in this list. If the individual cannot provide documents from this list, ask for documents from List B. Frequency of Follow-up Checks for Documents from the List A Category Where an individual provides a document or combination of documents from List A, documents are checked before employment commences and no further checks are required for the duration of their employment. Page 23 of 30

24 LIST A Acceptable Documents to establish a continuous statutory excuse 1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British Citizen or a Citizen of the UK and Colonies having the right of abode in the UK. 2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area or Switzerland. 3. A Registration Certificate or Document certifying permanent residence issued by the Home Office to a national of a European Economic Area country or Switzerland. 4. A Permanent Resident Card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland. 5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK. 6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. 7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person s permanent National Insurance number and their name issued by the Government agency or a previous employer. 8. A full birth or adoption certificate issued in the UK which includes the name(s) or at least one of the holder s parents or adoptive parents, together with an official document giving the person s permanent National Insurance Number and their name issued by a Government agency or a previous employer. 9. A full birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person s permanent National Insurance Number and their name issued by a Government agency or a previous employer. 10. A Certificate of Registration or naturalisation as a British Citizen, together with an official document giving the person s permanent National Insurance Number and their name issued by a Government agency or a previous employer. Page 24 of 30