New Arrangements for Employing Overseas-Trained Teachers Already in the Uk

EMPLOYING OVERSEAS-TRAINED TEACHERS ALREADY IN THE UK

ADVICE FOR DIVISIONS

SEPTEMBER 2011

This guidance document provides information on immigration rules that affect teachers subject to immigration control. It replaces previous guidance issued in January 2009 and April 2010:

Arrangements for Employing Overseas-Trained Teachers Already in the UK – NUT Guidance for Divisions – January 2009.

Changes to Arrangements for Employing Overseas-Trained Teachers already in the UK – Advice for Divisions – April 2010.

INTRODUCTION

Under the Immigration, Asylum and Nationality Act 2006 and arrangements introduced in 2008, overseas-trained teachers from non-EU countries and subject to immigration control are required to meet the requirements under a points-based system for assessing eligibility to live and work in the UK.

In addition, teachers subject to immigration control require a ‘certificate of sponsorship’ from a licensed sponsor (i.e., a local authority or governing body registered with the UK Border Agency).

THE IMMIGRATION CONTROL SYSTEM

The Sponsorship Scheme

In order to employ or continue to employ teachers subject to immigration control employers must obtain a sponsor license from the UK Border Agency, after which they may issue a ‘certificate of sponsorship’ to the teacher. The certificate of sponsorship is not an actual certificate or paper document but is a virtual document similar to a database record. Each certificate of sponsorship will have a unique reference number and will contain information about the job for which the certificate of sponsorship has been issued and the applicant’s (i.e., the employee’s) personal details.

The Points Based System

Under the points based system, migrants may fall into one of five tiers. Teachers and FE lecturers fall into Tier 2 for skilled workers. Tier 2 workers require 70 points to live and work in the UK. The points are allocated as follows:

Section A (50 points needed)

Sponsorship

Maths/Science teachers (excluding biology teachers)

and teachers in special

schools (shortage occupations)50 points

Teaching jobs in subjects other than Maths/science

and teaching jobs in Primary schools which pass the

Resident Labour Market Test30 points

Highest qualification (or equivalent)

Bachelor degree10 points

Masters degree or PhD15 points

Prospective Earnings

Below £20,000 0 points

£20,000 - £23,99910 points

£24,000 - £27,99915 points

£28,000 - £31,99920 points

£32,000 or above25 points

Section B (mandatory 10 points)

English Language Ability

Teachers are required to demonstrate that they can speak English at a basic level. They may do this by being a national of a majority English speaking country (e.g., US, Jamaican, Australian national), or pass an English language test, or hold a degree that was taught in English.

Section C (mandatory 10 points)

Maintenance (available funds)

Teachers are required to demonstrate that they have at least £800 in a savings account that will be at their disposal while in the UKand they must show that they held this sum for a consecutive 90 day period ending no more than 1 calendar month before the date of the application under Tier 2. Where the teacher has dependents or intends to bring dependents to the UK, he or she must have an extra £533 for each dependent.

The Resident Labour Market Test

Unless the post is for a secondary school teacher of maths or science(excluding biology), or a special needs teacher, existing or prospective employers are required to meet the Resident Labour Market test before a certificate of sponsorship can be issued.

The resident labour market test requires the employer (i.e., sponsor) to demonstrate that no UK-qualified teacher or person on employment based training is available to fill the post for which the overseas-trained teacher is to be employed. In the case of teachers and lecturers, the sponsor must show that it advertised the post in the national newspapers; with Jobcentre Plus; in professional journals such as the TES; at graduate fairs and on the internet, for at least 28 calendar days.

RenewingCertificates of Sponsorship

A teacher whose certificate of sponsorship expires while he or she is ‘in post’ should nothave his or her jobre-advertised before a new certificate of sponsorship is issued.

The UKBA’s policy guidance on transitional arrangements makes it clear that a teacher may apply for a certificate of sponsorship under Tier 2 without having met the qualifications, prospective earnings and resident labour market testswhere he or she has, or was last granted leave as a qualifying work permit holder and continues to work for the same employer in the same job.

Example

Mr B is a teacher from Jamaica who arrived in the UK on a four year visa with a work permit issued in January 2006. He has worked at XYZ community school to date and is now engaged under a permanent contract of employment. He has successfully completed the Overseas Trained Teacher Programme (the OTTP) and has UK qualified teacher status (UK QTS). In January 2010 he applied for further leave to remain and was informed by UKBA that he required a Certificate of Sponsorship from his employer. On informing his Headteacher of this, he was told that because of changes to the immigration rules in December 2009, she could no longer obtain a sponsorship certificate for him without first advertising his post. He has been told that he cannot return to the school whilst his post is being advertised. He wants to know whether the Headteacher’s position in this is correct.

Answer

The Headteacher’s position in this is not correct. The Resident Labour Market Test does not apply if the applicant for leave to remain continues to work in the same job and for the same employer that the original leave was granted for. Any attempt by the Headteacher to dismiss in the circumstances will give rise to a claim for unfair dismissal and, possibly, a race discrimination.

Where the teacher is re-engaged under a new contract, however, or a temporary contract is renewed, there may be an obligation on the employer to meet the resident labour market test before the teacher is re-engaged under a new certificate of sponsorship.

Automatic Points for Extended Leave to Remain

Teachers who are already in the UK under Tier 2 will receive an automatic award of 50 points on applying for an extension to live and work in the UK, provided they remain in the same job with the same sponsor i.e. employer. They must also be paid at least the same, or higher, salary than that shown on their certificate of sponsorship for their previous grant of leave. Furthermore, their salary must be at least equal to the current appropriate rate for the job, which may have risen since their previous application to stay in the UK.

Example

Mrs A has been employed by X local authority to work at ABC school under a certificate of sponsorship since April 2009. Her certificate is due to expire in April 2012. If X local authority wishes to retain her services after the expiry of her certificate, it will have to issue a second certificate of sponsorship. Once issued, Mrs A will be able to continue her employment at ABC school and apply for leave to remain without meeting the qualifications and earnings requirements and the resident labour market test under Tier 2.

However, if she goes to work for Y local authority at the expiry of her certificate of sponsorship, she will not be awarded 50 points automatically. Instead, she will be subject to the requirements of the new points table (as above).

When to Make an Application for Extended Leave to Remain

Teachers should consider very carefully and well in advance of the expiry of their current visa document, when to apply for an extension/renewal of their leave to remain. The UKBA policy guidance document says that an application must be made within three months from the date on which a Certificate of Sponsorship is issued and no more than three months before the start date on the Certificate of Sponsorship. The teacher is required, in any event, to apply before his or her current leave expires.

If a teacher is staying in the same job with the same employer, he or she may make an application for extended leave while continuing to work. However, if the teacher changes jobs (e.g. moves from one school to another) and/or changes employer, then his or her application for leave must be approved before he/she may commence employment.

Example

Ms C is employed by ABC local authority. Her current leave to remain does not expire until January next year. Ms C applies for and is appointed to work at a school in XYZ local authority. Her new employment starts on 1st September this year. She has handed in her notice in accordance with the provisions of the Burgundy Book. Her notice period expires on 31st August.

In order to comply with the requirements of the immigration control system, Ms C should ensure that she receives a new Certificate of Employment from XYZ local authority by June this year and that she makes an application for leave to remain soon thereafter to ensure that her application is approved on or before 1st September. Once Ms C receives a new leave to remain visa, stating the name of her new sponsor and her new place of employment, her old leave to remain visa will become invalid.

Change of Employment

The UK Border Agency (UKBA) intends at a future date to clarify its policy on when a new Tier 2 application is required because of change of employment. At present, a change of sponsor (i.e. employer) requires a teacher to obtain a new certificate of sponsorship from the new sponsor and make a fresh application for leave to remain under Tier 2. The UKBA say that this will not alter. However, future guidance is intended to provide clearer, more objective instructions for cases in which a teacher’s job/contract is changing, but he or she is remaining with the same sponsor/employer (i.e. LA employed teachers who move to a different school maintained by the LA). The UKBA say that in these circumstances, they may no longer require a new application for leave, although there will be two exceptions to this.

The exceptions are:

if the teacher’s salary reduces below the level stated on their certificate of sponsorship (other than reductions due to maternity or adoption leave);

if the teacher changes from a job which is on the shortage occupation list (i.e. Maths/Science teacher or teacher in a special school) to a job which is not on the shortage occupation list. In these circumstances, a fresh Tier 2 application will be required. This means that a Resident Labour Market Test will apply. A fresh application will not be required if the teacher stays in the same job, but that job is later removed from the shortage occupation list.

Until fresh guidance is published, however, teachers should continue to assume that a change of contract or job, even if employment with the same sponsor continues, will require a fresh application for leave to remain and a fresh certificate of sponsorship.

At Appendix one is a flowchart which explains how the arrangements work in practice.

WHAT SHOULD DIVISIONS DO?

Union organisation and representation is crucial to defending the rights of overseas-trained teachers already in the UK. Agreement with local authorities on fair working practices in relation to overseas-trained teachers, including recruitment practices, will provide the best protection for NUT members.

Divisions in the areas most likely affected by the immigration control system are encouraged to reach a collective agreement with the local authorities in their area on best practice when employing migrant workers/overseas staff in England and Wales.

A model policy document is attached at Appendix three for that purpose.

For casework queries arising from the arrangements explained above, division secretaries are encouraged to disseminate the document attached at Appendix two, which isguidance for affected members in the form of FAQs.

APPENDIX 1

EMPLOYMENT OF OVERSEAS-TRAINED TEACHERS (OTTs)ALREADY IN THE UK

Is the prospective or existing employer licensed by UK Border Agency to issue Certificates of Sponsorship? / → NO → / OTT cannot be employed

YES

Are there arrangements in place to provide a Certificate of Sponsorship once the OTT’s existing work permit expires? / → NO → / The sponsor will not be able to employ the OTT without first issuing a Certificate of Sponsorship

YES

Does the OTT meet the requirements of the new points-based system? / → NO → / OTT cannot be employed once his or her existing work permit expires

YES

Is the post offered on the shortage occupation list? / → NO → / Does the sponsor meet the labour market test? / → NO → / OTT cannot be employed

YES
 / 
YES

OTT can be employed / OTT can be employed

APPENDIX 2

EMPLOYING OVERSEAS-TRAINED TEACHERS ALREADY IN THE UK

ADVICE FOR MEMBERS

SEPTEMBER 2011

This guidance document provides information on immigration rules that affect teachers subject to immigration control.

What are the arrangements for employing teachers subject to immigration control?

Employers are required to obtain a sponsor license, following which they may issue an on-line certificate of sponsorship to the teacher they wish to employ. A certificate of sponsorship may be issued only where the teacher meets the requirements of the new points-based system and the sponsor meets the labour market test where appropriate.

What is a Certificate of Sponsorship?

A certificate of sponsorship is not a paper document, but a virtual document, which holds information about the job and the teacher’s personal details. When the sponsor issues a certificate reference number, he will also need to give the teacher some of the information used to assign the certificate, such as a job description and wage details.

What is the Points Based System and what does it entail?

The points based system is the means by which the UK Border Agency determines whether you qualify to live and work in the UK. Overseas workers subject to immigration control fall into one of five tiers. Teachers and FE lecturers fall into Tier 2 for skilled workers. Tier 2 workers require 70 points to work in the UK. The points are made up as follows:

Section A (50 points needed)

Sponsorship

Maths/Science teachers (excluding biology teachers)

and teachers in specialschools (shortage occupations)50 points

Teaching jobs in subjects other than Maths/science

and teaching jobs in Primary schools which pass the

Resident Labour Market Test30 points

Highest qualification (or equivalent)

Bachelor degree10 points

Masters degree or PhD15 points

Prospective Earnings

Below £20,000 0 points

£20,000 - £23,99910 points

£24,000 - £27,99915 points

£28,000 - £31,99920 points

£32,000 or above25 points

Section B (mandatory 10 points)

English Language Ability

Section C (mandatory 10 points)

Maintenance (available funds)

Further, unless the post is for a secondary school teacher of maths or science (excluding biology), or for a teacher in a special school,the existing or prospective employer (i.e., the sponsor) must meet the resident labour market test before a certificate of sponsorship can be issued.

The UK Border Agency will assume that teachers with existing work permits meet the points-based requirements of Tier 2 until such time as they either change employment or the work permit expires, whichever is sooner.

What is the resident Labour Market Test?

The resident labour market test requires the sponsor to demonstrate that no UK-qualified teacher or person on employment based training is available to fill the post for which the teacher is to be employed. In the case of teachers and lecturers, the sponsor must show that it advertised the post in the national newspapers; with Jobcentre Plus; in professional journals such as the TES; at graduate fairs and on the internet for at least four weeks.

How long do certificates of sponsorship last?

A certificate of sponsorship will expire after three years or on termination of the job for which the certificate was issued, whichever is sooner. After three years, or on termination of the employment contract, the sponsor will be required to issue a second certificate of sponsorship if the teacher’s services are to be retained.

Can I have more than one sponsor at the same time?

No. You cannot be assigned a certificate of sponsorship by more than one school or local authority at the same time.

I qualified as a teacher in Poland. Do I require a sponsorship certificate?

No. Only overseas-trained teachers who qualified in countries outside the European Economic Area and Switzerland and who are subject to immigration control require a certificate of sponsorship.

What if my leave to remain expires before my work permit/certificate does?

If you were last granted leave to remain as an existing work permit holder and you continue to work for the same employer and in the same job that the original leave was granted for, you may obtain extended leave without having to satisfy all the requirements of the points based system under Tier 2 (i.e. qualifications, Resident Labour Market Test etc.). However, you will have to comply with the following conditions. You will have to show that:

you have a certificate of sponsorship;
the certificate confirms the job is at N/SVQ level 3 or above; and
you are paid at or above the appropriate rate for Tier 2.

If you were last granted leave to remain as the holder of a valid certificate of sponsorship you will automatically receive 50 points under the points based system when you apply for extended leave, provided you remain in the same job with the same sponsor i.e. employer.

What if my work permit/certificate of sponsorship expires before my job ends?