In a change to the Immigration Rules, announced today, Sajid Javid will include strike action in the list of exemptions to unauthorised absences in Tier 2 and Tier 5 policy guidance.
Until now, there has been discordance between Home Office policy and employment law, the latter protecting the right to strike and the former creating sinister implications for migrant workers who strike.
As the Rules currently stand, absence from work for strike action as classed as an unauthorised absence. Under the provisions of their Tier 2 sponsor’s licence, the sponsoring employer is under a duty to report 10 consecutive days unauthorised absence to the Home Office. This could have resulted in the curtailment of the employee's leave to remain in the UK.
This issue came to light during the recent university employee strikes. Immigration practitioners, unions, and universities have been urging the Home Office to change their policy to protect migrant workers who choose to engage in strike action.
In a positive step, we now have confirmation that not only has no curtailment action been taken against striking employees but also Home Office policy will be changed to ensure that migrant workers are not unfairly penalised for taking lawful strike action.
Following a recent strike by university lecturers, a number of Honourable Members have raised concerns about the position of migrant workers who engage in legal strike action and whether this affects their immigration status. It is not the Government’s policy to prevent migrant workers from engaging in legal strike action; and, to date, I am not aware of any case where a migrant worker has had their leave curtailed, or been removed, as a result of having engaged in legal industrial action. However, to put the matter beyond doubt, I will be making changes to the guidance and Immigration Rules for migrant workers (under the Tier 2 and 5 immigration routes) and their sponsors. The specific change will add legal strike action to the list of exceptions to the rule on absences from employment without pay for migrant workers.