Religious organisations, whether churches, mosques, synagogues or Buddhist, Hindu or Sikh temples, have for a long time had a unique set of immigration rules imposed on them which dictates who can work, and even volunteer, for them.
This article provides a current overview of the key immigration policies which affect churches and other religious organisations, including Brexit and the sponsorship system for recruiting non-EU employees or volunteers. We also look at Right to Work checks and how to avoid hefty fines.
Employing Migrants in Your Organisation
EU employees and Brexit
For now, at least, it remains relatively straightforward for religious organisations to employ EU nationals. Free Movement is effectively being retained during the currency of any transition period.
As I write we are yet to have crashed out of the EU without a deal – but even if we do there are measures in place to protect the rights of EU nationals already resident in the UK, although the future recruitment of EU nationals gets trickier.
Organisations should, however, be familiar with the EU Settlement Scheme, the mandatory registration system open to all EU nationals and their family members since March 2019.
Under the Scheme, applicants will be granted either Pre-Settled Status or Settled Status. Settled Status is a form of indefinite leave to remain, which individuals will qualify for after completing five years’ continuous residence. Those who do not qualify for Settled Status are given Pre-Settled Status and are given leave to remain for five years. After accruing five years’ residence they can apply for Settled Status.
You can read more about this in my blog The EU Settlement Scheme: A Practical Guide for Employees and Employers.
Employing non-EU nationals
The situation is far more complex for religious organisations that want to employ a non-EU national. Unless this person already has a visa in some other capacity (eg. The person is a spouse of a British national, or on a student visa), then you will need to have a Home Office sponsor licence before you can sponsor and employ the individual.
There are two types of sponsor licences available which are specifically for religious organisations: Tier 2 Minister of Religion and Tier 5 Religious Workers.
Tier 2 Minister of Religion
The Tier 2 Minister of Religion category is for individuals coming to the UK to carry out preaching or pastoral work.
Before sponsoring someone in this category you will normally need to carry out something called a resident labour market test to show that the job cannot be filled by a suitable ‘settled worker’, meaning a UK/EU national or someone with a right to live here permanently.
The resident labour market test requires you to advertise the job for at least 28 days in a way strictly defined by the Home Office. You will need to retain specific evidence to prove that you advertised the job appropriately.
Failure to run a proper resident labour market test is a regular cause of religious organisations losing their sponsor licence.
In my experience you will need to run the resident labour market test before you apply for a licence, in order to show that there is a real need for the sponsor licence. If you apply for a licence without having run a test, then the Home Office might conclude there is no need for you to have a licence and reject your sponsor licence application.
Once you have completed the resident labour market test then you can apply for a certificate of sponsorship. This is a virtual document which you assign to your prospective pastor/preacher who can then apply for their visa.
The visa is valid for three years which is extendable by a further three years maximum. This route leads to settlement: the individual can apply for indefinite leave to remain after completing a total of five years’ sponsorship in the Tier 2 category.
Tier 5 Religious Worker
Religious organisations wishing to sponsor a minister of religion used to have a choice over whether to sponsor under Tier 2 or Tier 5. However, changes in 2019 mean that Ministers of Religion (including pastors and preachers) are specifically excluded from sponsorship under Tier 5.
This means that many organisations who previously sponsored under Tier 5 may now need to apply for a Tier 2 licence.
It is not clear to me exactly what type of roles can now be filled under Tier 5. Certainly not ministers of religion, yet the guidance states this route can only be used to fill roles ‘carrying out religious duties’ – so you can sponsor under Tier 5 in a role which falls short of being a full minister of religion but which still involves some lower level of religious duties.
Roles in religious organisations which do not involve carrying out religious duties will need to be sponsored under a different category of licence, most likely the Tier 2 General category. Note, however, that jobs under Tier 2 General will generally need to be recognised as being at degree level or above and there are strict minimum salary thresholds which apply.
An individual sponsored under the Tier 5 Religious Worker category can only stay in the UK for up to 24 months. After this there is a ‘cooling-off period’ which prevents the individual from applying again in the Tier 2 or 5 category until 12 months have passed.
The apparent logic of the resident labour market test is that it stops non-EU nationals from filling jobs which could be done by British (or technically ‘settled’) people. You might think that the rules would be relaxed when it comes to religious organisations and volunteering.
Sadly not. If you want a non-EU national to volunteer for you then, in terms of immigration law, you must jump through similar hoops as if they were an employee. A religious organisation looking to recruit a volunteer to do unpaid voluntary work will need a specific licence – the snappily named Tier 5 (Temporary Worker – Charity Worker).
Thankfully there is no need to run a resident labour market test in respect of volunteers. There are, however, other important restrictions.
As the title suggests you cannot offer paid employment under this category. Migrants in this category must only do ‘voluntary fieldwork directly related to the purpose of the charity’. This means a sponsored volunteer can only do activities that are not normally remunerated. The Home Office give examples of work which a sponsored volunteer cannot do, including routine administrative work or fund-raising.
Individuals can only be sponsored for up to 24 months in this category and again a ‘cooling-off’ period applies for Charity Workers, which means an individual who has been in the UK in this category must wait 12 months before reapplying in this or any Tier 2 or 5 category.
Right to Work
As with any type of employer, Religious organisations are required to verify that all potential and existing employees are eligible to work in the UK by undertaking Right to Work checks. The harsh sanctions for non-compliance mean it is always worth making sure your organisation properly understands what is required.
Any employer which has not undertaken an appropriate Right to Work check, but which is later found to be employing a person without the appropriate permission to work in the UK, will face a fine of up to £20,000 per migrant.
There is a ‘3 Step Check.’ If going down the traditional, ‘manual’ route, employers must first obtain documentation from either List A or List B of the Right to Work Checklist. The employer must scrutinise, copy and retain the documents, ensuring that they endorse the copy to confirm when the check took place, and if presented with a document showing a time-limited right to work, ensure they undertake a follow up check.
The Home Office now offers an online checking system which can be used by non-EEA nationals who hold biometric residence permits or cards and by EEA nationals who have been granted status under the EU Settlement Scheme. The individual must first view their own right to work record which will generate a unique ‘share code’, which may be given to the employer, allowing the employer to conduct its own online right to work check on the migrant.
Do I have a defence?
Provided that an employer has undertaken the appropriate checks, they will have a statutory excuse against liability for a civil penalty, if it is discovered that the employee has been working illegally.
If an individual holds documents from List A, including a British or EU passports, a permanent residence documents or a document confirming a grant of indefinite leave to remain, then the employer will have a permanent statutory excuse.
However, upon presentation of other documents under List B, such as time-limited visas, the statutory excuse will be time-limited, lasting until the expiration date of the visa. This places an obligation on the employer to conduct follow-up checks.
Need immigration advice?
If you are looking for advice on behalf of a religious organisation, then contact the Immigration Team at Truth Legal who have expertise in assisting religious organisations on immigration matters. We also run free training for religious organisations on sponsorship. Contact us here.
From one of the UK’s most read legal blogs.