Absences & Immigration Rules

It is a fact of working life that employees take time off from work. These include pre-approved absences such as holiday and parental leave or unexpected absence such as lateness and sick leave. For most employees these absences are filed away in HR systems and no more thought is given. However, for employees who are subject to immigration control, absences from work can be a potential issue for both employees and employers.


Employers Duties & Absences

All Tier 2 and Tier 5 sponsor licence holders have strict duties which they must adhere to, to retain their licence. These include keeping sufficient records of migrant employees and their absences. If an employee has 10 consecutive unauthorised absences then the employer is required to report this on the 10th day. In recent news we heard how university staff went on strike over issues with their pension. The Home Office view this as an unauthorised absence. If any of those strikers were migrant workers and they were on strike for more than 10 days, the university would be duty bound to report this to the Home Office. There could be further issues if the migrant worker was not being paid while on strike. If the migrant’s pay were reduced below the rate of their relevant occupation code then the employer is duty bound to report this to the Home Office. Either of these issues could result in curtailment of the employee’s leave. If unreported, they could result in the Home Office taking steps to revoke the employer’s licence.


Absences from the UK

Many employees spend time overseas as part of their employment. This is particularly true of academic staff in the university sector. Secondment to overseas universities or to industry for research is a very typical scenario in this sector. This can have serious consequences for staff recruited and retained under the points based system, including skilled workers under Tier 2.On 11th January 2018 the Home Office introduced new rules relating to how they calculate the continuous period of residence in the UK for points based system migrants applying for indefinite leave to remain in the UK. The Immigration Rules allow up to 180 days absence for every 12 month period. Prior to 11th January 2018, continuous residence was calculated in 12 month blocks, counting back from the date of the application. This meant that you could time an application to ensure that any excess absence was spread over different 12 month periods. From 11th January 2018, continuous residence will be calculated on a rolling basis with no more than 180 days in any 12 month period being permitted. This means that the Home Office will look at all absences. If they find any 12 month period with absences of over 180 days, they will refuse to grant indefinite leave to remain. This change is retrospective, meaning that employees who have been carefully calculating their absences from the UK in line with the old rules may now find that they will not meet the new rules when they apply for indefinite leave to remain. Tier 2 migrants are only permitted to stay in the UK with limited leave for up to 6 years. This means that not being eligible for indefinite leave to remain can have severe ramifications for the employee, and for the business that employs them. If a migrant employee has serious or compelling reasons for their absences, then an excess of 180 days may be overlooked at the discretion of the Home Office. Employees should seek formal legal advice before submitting their application.


What about EU staff?

Until the UK leaves the EU on the 29th March 2019, EU nationals have a right to live and work in the UK without restriction. They are not sponsored by their employers and so there are no duties for the employer to report absences to the Home Office for EU staff. Currently EU law states that continuity of residence is broken if an EU national is absent from the UK for 6 months in any year, but they are permitted one absence of up to 12 months for good reason, such as an overseas posting. The impact of lost continuous residence means the EU national may not acquire permanent residence until 5 years has passed from the break in continuous residence. Negotiations over Brexit are ongoing but we know that EU nationals will have a period of voluntary registration after the 29th March 2019. This will be registration for settled status for those who have completed a 5 year period of continuous residence or for temporary residence for those who have not yet completed a 5 year period of residence or who have absences which have broken the continuity of their residence. The period of voluntary registration is likely to last for two years. After this period EU nationals will be required to register to have the right to live and work in the UK. There is much speculation as to whether EU nationals will be required to apply under the points based system in the future. If this happened, the impact on businesses who rely on EU staff will be substantial. While this is only speculation at this time, employers may benefit from having a robust HR system in place in readiness. Freeths’ immigration team specialise in business immigration including Tier 2 recruitment and sponsor licence management.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.