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How it works: schools, Tier 5 licences and charity workers

Sponsored: VWV's Tom Brett Young explores the remit of the Tier 5 (Charity Worker) category for independent schools

Posted by Julian Owen | March 24, 2018 | Law, finance, HR

Charitable organisations are able to apply for a licence enabling them to sponsor migrant workers under the Tier 5 (Charity Worker) category.  Migrants issued visas in this category can come to the UK for up to 12 months “to undertake voluntary fieldwork which contributes directly to the achievement or advancement of the sponsor’s charitable purposes in the UK”. Many independent schools established as charities already hold a sponsor licence enabling them to sponsor migrants in this category.

Anecdotally, it appears there has recently been an increase in refusals of applications for visas submitted by migrant workers who have been sponsored by schools under Tier 5. There have been no substantive changes in the rules or policy for this category for many years, nor is this category subject to a quota. Therefore, an increase in refusals could be due to existing rules being applied more strictly.

What are the requirements for sponsors?

The Tiers 2 and 5 guidance for sponsors (the Sponsor Guidance) provides as follows:

4.14 To apply for a licence as a sponsor of charity workers, you must be a registered, excepted or exempt UK charity in line with the relevant charity legislation in force in your part of the UK

Independent schools registered as charities are eligible to become sponsors in this category.

The Sponsor Guidance also explains that when a sponsor assigns a Certificate of Sponsorship (CoS) to a migrant worker under this category they make certain guarantees regarding the work the migrant will be doing:

 - The migrant will undertake voluntary fieldwork which is related to the objects of the charity for a period of no longer than 12 months

 - The migrant will not be paid or receive other remuneration for their work

 - The migrant will not be filling a permanent position, including on a temporary basis

 - The migrant will comply with the conditions of their permission to stay and will leave the UK when their leave granted under this category expires

"The Tier 5 (Charity Worker) category is a useful one but its remit is perhaps narrower than many appreciate." 

Taking these guarantees in turn:

Voluntary fieldwork relates to the objects of the charity

UK Visas and Immigration (UKVI) guidance explains that voluntary fieldwork means activities which would not normally be offered at a wage or salaried rate and which contribute directly to the achievement or advancement of the sponsor’s charitable objects. This does not include work which is ancillary to the sponsor’s charitable objects, such as routine back office administrative roles, retail or other sales roles and fund-raising roles.

Pay/remuneration

Migrants sponsored under this category cannot receive any form of payment or remuneration, including benefits in kind, except the permissible reasonable expenses payable to voluntary workers set out in the National Minimum Wage Act (NMWA), eg expenses incurred in the performance of duties (or reasonably estimated as likely to be or to have been so incurred). 

Voluntary workers may receive some or all subsistence or accommodation as is reasonable in the circumstances of the employment but any other payment, remuneration or benefit in kind is prohibited.

Filling a permanent position

A person sponsored under this category cannot be coming to temporarily fill a permanent role. If somebody else would be needed to fill this role after the voluntary worker has left the UK then this requirement will not be satisfied.

Compliance with conditions and leaving the UK

When a sponsor assigns a CoS, UKVI take that as a guarantee from the sponsor that the migrant will comply with the conditions of their permission to stay and that they will leave the UK when their leave expires.

Reported refusals

It appears that recent reasons for refusals under this category primarily include:

 - Failure to demonstrate the role is not a permanent position

 - Failure to demonstrate how the proposed work will help meet the charity’s objects

These are not new requirements, but it is possible that applications are being subjected to a greater degree of scrutiny than previously. Schools relying on this category need to ensure they are able to demonstrate how all of these requirements are satisfied.

Whilst there is no requirement to submit any additional documents with the application which might demonstrate how these requirements are satisfied, it is recommended that schools use the job description section of the CoS to explain clearly that the role is not temporarily filling a permanent position. Also how it will help meet the school’s charitable objects.

As well as the records sponsors must retain in accordance with Appendix D of the Sponsor Guidance, they should also retain evidence demonstrating the above requirements have been satisfied. This evidence should be retained on the sponsored migrant’s file and made available for inspection by UKVI compliance officers on request. 

The types of roles in a charitable independent school which might meet the requirements for sponsorship in this category will depend on their particular charitable objects. Voluntary roles unlikely to meet the requirements include qualified/unqualified teaching staff, work experience positions, fundraising roles and grounds maintenance. 

Incorrect assignment of a CoS risks both the migrants’ visa application being refused and compliance action being taken against the sponsor for failing to ensure the requirements of the category have been satisfied. This could be considered as a form of abuse of the sponsorship system.

Tom Brett Young

Alternatives to the Tier 5 Charity Worker category

Where the Tier 5 Charity Worker category might not be appropriate, schools may wish to consider alternative immigration categories in order to employ foreign nationals requiring sponsorship, including:

 - Tier 5 (Youth Mobility Scheme) – migrants under the age of 31 from specified countries who can come to the UK for up to two years and take any paid employment (other than as a professional sportsperson or coach)

 - Tier 5 (Government-Authorised Exchange) – Home Office-approved schemes allow graduates and undergraduates to intern and undertake work experience in the UK

 - Dependants of Points-Based System migrants – a foreign national accompanying their spouse to the UK who has been granted a visa in Tiers 1, 2, 4 (unless the principal migrant is studying part-time) or 5 will usually be granted permission to work

 - Tier 2 (General) – schools with a Tier 2 sponsor licence may consider sponsoring workers under this category, although this will require compliance with various requirements such as minimum skill level and minimum salary

Conclusion

The Tier 5 (Charity Worker) category is a useful one but its remit is perhaps narrower than many appreciate. Schools sponsoring voluntary workers under this category need to ensure the role in question meets the requirements stipulated above with proper evidence. Visa applications are not always subject to the same level of scrutiny, so applications not addressing all of these requirements may still be approved, but failure to demonstrate how the requirements set out above have been satisfied do run a risk of refusal. Anecdotally, it appears that greater scrutiny is now being applied.  Sponsors considered to be abusing this route may be subject to compliance action, so could receive a compliance visit from UKVI and may have their sponsor licence downgraded, suspended or revoked.

For further info, visit vwv.co.uk/mos/schools. To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. 

Tom Brett Young is a Senior Associate at leading education law firm VWV. He can be contacted on 0121 227 3759 or via tbrettyoung@vwv.co.uk.

 

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