Updates, commentary, training and advice on immigration and asylum law
Will participation in industrial action impact visa permission?
The UK continues to play host to industrial action with the latest strike action announced this week being opted for by Junior Doctors and currently set for March 2023. For many, negotiated settlements continue to be some way off and further strikes are anticipated in the coming months.
UK visa holders should not, for the most part, be detrimentally impacted should they engage in legally organised industrial action alongside their settled co-workers; certainly, this seems to be the policy position that the Home Office have taken in their guidance as it relates to industrial action. There are, however, a number of indirect impacts that industrial action can have on some UK visa holders who opt to join a picket line.
The various impacts of engaging in industrial action can differ according to the characteristics of the action taken and the status/type of visa permission an individual holds.
Reduction in pay
Taking legally organised industrial action necessarily involves an absence from work and for many workers may therefore lead to a reduction in salary or pay, even if temporarily. The impact of a reduction in pay will often be determined by how long action is taken for, i.e. how much work is not attended.
Family route visas
For Family Route visa holders this can potentially lead to a loss in income level that drops them below the necessary financial threshold for their particular visa category. Whilst a reduction of income that could lead to such a visa processing delay can be managed, it may dissuade some from engaging in industrial action. Should income thresholds for Family Route applications not be met, applicants face being moved onto a longer-term route to indefinite leave to remain and – in rare cases – a potential refusal for failure to meet the eligibility requirements of the leave applied for.
Should absence from work due to industrial action lead to a reduction in pay for a sponsored worker, this will need to be reported to the Home Office by their sponsor. Where the reduction does not lead to a salary falling below the minimum requirement for their particular job role, there should be no substantial impact on the worker.
Ordinarily, where a reduction leads to a salary falling below the minimum requirement, sponsorship should be terminated. Where the reason for an absence from work that leads to a reduction in salary coincides with a period of absence for a permissible reason, such as engaging in industrial action, termination is not necessary.
In reality, the nature of securing and maintaining sponsorship is for many overseas workers an absolute priority. The knowledge that the Home Office will be notified that a salary is reduced may put off engagement in industrial action, even where the reduction is to a permissible level.
Sponsored workers who take of 28 days or longer of unpaid leave in any calendar year will face termination of their sponsorship. Engaging in industrial action is an exception to this rule.
A sponsor is under a duty to report this change in circumstances to the Home Office. For sponsored workers whose employer and sponsor differ, the reason for the absence must be properly communicated to the sponsor by the employer. It is important to ensure that any report to the Home Office where 28 days of unpaid leave could be triggered contains a reference to any period that can be discounted due to industrial action.
Absence from work without permission
Organisations that hold a Sponsor Licence have an obligation to report to the Home Office if a sponsored national is absent from work for ten consecutive working days without permission.
The primary function of this obligation is to ensure that upon arrival in the UK, sponsored workers do not abscond; i.e. that their employer/sponsor has a degree of control over the individual at all times. Reporting such an absence allows the Home Office’s curtailment team to consider any further action that should be taken against a worker.
Industrial action is, by its very nature, an absence from work without permission. The guidance relating to this type of absence from work gives sponsors the scope to exercise discretion on several points when considering whether or not engaging in industrial action amounts to being absent from work without permission.
Should an employer considers that an absence from work for industrial action is without permission, then at the point at which a worker has been absent from work for the requisite length of time, a report to the Home Office can be deemed necessary. It is fair and reasonable to expect that absence from work without permission to not apply where the reason is due to engaging in industrial action, however, the Home Office’s sponsor guidance does not offer this interpretation.
The guidance is similarly opaque when considering what constitutes ten consecutive working days. A general view is that a working day is a day where a worker is engaged in work. In other words, this would not include any day where being absent from work is due to shift patterns, but rather only all absences from work where work would ordinarily or otherwise have been scheduled.
Elsewhere in the Home Office’s sponsor guidance (at S4.11) the 28 days triggering the unpaid leave reporting threshold is calculated based on when an individual ‘normally works’. Calculating what constitutes ‘normal work’ becomes more difficult for individuals with varying shift patterns. In the absence of clarity from the Home Office, employers could exercise discretion to calculate ten consecutive working days in a way that is detrimental to their employee.
Irregular or additional shift work has an effect on the ten consecutive working day rule and ultimately, the attitude of the sponsor when calculating what constitutes ten consecutive days will be significant when deciding whether to opt in to or continue with industrial action.
During the last period of significant strike action in 2019, Nicola discussed the impact of student visa holders taking industrial action.
In short, where a student visa holder misses ten consecutive expected ‘contact points’ or ceases academically engaging, the Home Office must be notified by the sponsor. The Home Office should also be notified if the sponsor is minded to withdraw sponsorship. The nature of Further Education is such that what constitutes ‘contact points’, what constitutes missing a ‘contact point’, and what is therefore sufficient to discontinue sponsorship is a complex point and heavily circumstantial.
The principal issue from a student perspective is that (as with sponsored workers) what constitutes a failure to engage academically for ten consecutive ‘contact points’ is effectively at the discretion of a sponsor. Different universities may engage differing policies or differing levels of restrictions as to whether industrial action can be considered an authorised reason for an absence or not. Certainly, the Home Office guidance suggests that students who do not cross the picket line in support of lecturers on strike are specifically exempt from having a detrimental impact. There is no similarly clear guidance for those who do cross the picket line in support of their lecturers and who therefore miss the same ‘contact points’.
Engaging in Industrial action whilst in the UK on a visa, particularly a sponsored visa, is a particularly complex area of immigration law. On the face of it, engaging in industrial action should cause no harm to those who opt to engage in it. And yet there are numerous instances where the sheer incompatibility of a Home Office policy direction and the practicalities of engaging in industrial action serve both to permit individuals to freely engage in strike action, and to regulate the ability to engage in that strike action with indirect restrictions on visa permission.
Industrial action does not impact all visa holders equally. Those on personal visa routes should be extended the same freedom to engage in industrial action as settled workers, whilst those on sponsored visas remain under an additional layer of Home Office regulation that may restrict their decision on whether to take industrial action.
Visa holders should consider these additional regulations. But, as with all workers, it is the attitude, approach and internal policy of employers and sponsors that will always hold the key. Organisations will often inevitably retain employment/sponsorship powers that can create difficulty for those that engage in strike action and will, at the very least, create doubt in the minds of many considering joining a picket line.