External appointments and passport paperchases

Many international academics are external examiners for research degrees. But the way we deal with the immigration law consequences of this, finds James Hand, are varied and confusing.
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The Higher Education Statistics Agency reports that in 2016/2017 there were over 23,000 doctoral completions. REF 2014 saw 1,911 submissions to units of assessment and REF 2021 is likely to see more. What do these figures have to do with each other?

If one assumes that each Unit of Assessment has sought the advice of one external reviewer on average in the past year and that the number of doctoral completions has been broadly similar to the number in 2016/17 (and the past three years), with an average of one external examiner, then lecturers and professors are likely to have shown their passports and had them copied around 25,000 times by HEIs other than their own employer due to those activities alone in the past year.

When one adds those academics visiting to provide seminars or act as validation panel members and the like the number would be even higher. The purported reason? To comply with the Immigration, Asylum and Nationality Act 2006 (according to Sheffield), because it is a condition of UK immigration law (according to Leicester) or because the university is required to do so by the UK Visas and Immigration (UKVI) rules (according to Huddersfield) to name but three.

The Law

A survey of websites shows that the general practice is widespread even if the terminology and the precise practice differs. The Immigration, Asylum and Nationality Act 2006 certainly, under section 15, imposes the risk of a civil fine on those who employ adults who are subject to immigration control should there be a problem with their leave to enter or remain and if the employer has not taken such steps as are from time to time prescribed which would excuse civil liability (and if the employer employs them knowingly or with reasonable cause to believe that there is such a disqualification then there could under section 21 be a criminal fine or even imprisonment). The steps the employer can take to avoid civil liability are laid out in the Immigration (Restrictions on Employment) Order 2007 (as amended) and include the copying (and retaining for at least two years) of specified documents.

Few may object to the practice (used for many years) of requiring to see a passport of new full-time or part-time employees at the start of their new job alongside copies of qualifications and the like. However, requiring PhD examiners (and external reviewers) to do the same seems disproportionate, to say the least. Based on Higher Education Statistics Agency figures for 2016/2017, the number of passport checks for such external people appears to be around 2.4 times the number for new full-time employees. By their definition, full-time employees are unlikely to work for others and so the checks reasonably fall on the employer. By their qualification, most external examiners are already employed by another. One reason for requiring external examiners and reviewers (and others) to be checked is that it is clearly required for employees (as defined by section 25 of the Act, i.e. those under a contract of service or apprenticeship, whether express or implied and whether oral or written). However, while some of the 40 HEIs looked at do expressly define external PhD examiners as employees not all of them do. That also raises the question of whether they can reasonably be considered employees.

The practice: employment, self-employment and consequences

Kent, for example, clearly state in their letter to postgraduate research external examiners that “External Examiners are classed as employees of the University”. Brunel say they include external examiners and reviewers as employees (though they do not explicitly refer to employment when detailing the checks required for post-graduate research examiners) and Glasgow and City among others refer to the duties on employers. Oxford, Cambridge, Birmingham, Bristol, Exeter and Warwick, by contrast, all describe the role as self-employed either explicitly or by reference to the tax implications.

Others are less explicit. Of those that describe the status as self-employed, three clearly declare that right to work checks are not required. Cambridge declare “Examiners and assessors on graduate level degrees fall under the “self-employed” category, which does not require right to work checks.” Bristol, perhaps too emphatically, state: “Please note, external examiners are exempt from right to work in the UK checks” whereas Oxford advise that “Examiners and assessors who are not University employees and are working on PGT examination boards are to be paid as self-employed – no right to work checks required” while undergraduate examiners would be paid through casual payroll and would require checks (though there is no explicit mention of PGR examiners). They also state that there is no requirement to carry out a right to work check on “People providing a service for which they invoice the department or college under a contract for services and for which they are self- employed according to HMRC rules”.

The HMRC Internal Manual on Employment Status says: “The tax treatment of external examiners engaged by universities is currently under review by the CVCP and HMRC. In the meantime, examiners up to and including first degree level should be treated as employees of the university.” (ESM4504, 20 April 2017 update; Universities UK passed a query as to when that review may completed on to the Universities and Colleges Employers Association (UCEA) who refused to answer on the basis that they only advise heads of institutions and their HR directors). The Manual also says “Payments made to external examiners engaged by universities for masters’ degrees and doctorates generally fall to be treated as trade profits” (ESM4151, 20 April 2017 update).

There are many criteria which help identify an employee from a self-employed contractor but mutuality of obligation and control are two key ones. The ongoing relationship at undergraduate level may justify the treatment of undergraduate externals as employees as there is an expectation of continued work and pay during the term of employment. That may be enough to offset the concern that they are supposed to be an external and independent voice.

There is no such argument with regard to those who may only work once for the university in any given time-frame. The idea that External Examiners of PhDs or reviewers (be they for mock REFs or for course validation) are subject to control and have a mutual obligation to offer and provide work – and that they should receive the benefits and responsibilities of employee status – is a harder one to justify, not least when it causes an unnecessary bureaucratic burden on HR staff and academics. However, something harder than that to justify may be subjecting the self-employed to the right to work checks.

Under the General Data Protection Regulation (GDPR), and indeed its predecessors, personal information should be held only for as long as necessary and for clear purposes. Holding the information on employees is clearly acceptable as it is mandated by law but as there is no requirement to hold the data on the self-employed, the necessity and the purpose becomes open to challenge.

The future?

Immigration law is highly complex and HR departments perform not just a valuable role but a vital one. Given its complexity, it is perhaps not surprising that there are a range of approaches as to who and how right to work checks are carried out. For example, some institutions still appear to require a photocopy of the front cover of the passport (as well as the photograph and details page), though this ceased to be required by law in May 2014 (under the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014/1183 art.5(2)(e)).

However, misstatements about the law abound including “criminal” liability for employment of those without the requisite leave (with no mention of the required knowledge or reasonable cause for belief) or personal liability on the employees charged with collecting the passports. UCEA and Universities UK should now take the lead in providing a clear, open, unified and non-bureaucratic approach to ad hoc external examiners and reviewers – and preferably one which respects the difference between employees and external service providers – or explain how muddling the two and increasing the bureaucracy is in the interests of the academy.

One response to “External appointments and passport paperchases

  1. The changes to IR35 are clearly going to exacerbate the situation here. It isn’t mentioned in this otherwise informative article but it is about “Off-payroll working through an intermediary” and relates to definitions of self-employed providing services to “public authorities” through a personal services company. IR35 is the mechanism being used by HMRC to try to collect tax at source rather than through annual assessment.

    Universities are defined by HMRC as part of the “public authorities” (due to the use of the Freedom of Information act remit) and are being chased for a much narrower definition of self-employment. I don’t know whether many PhD examiners across the sector use this tax vehicle but those that do are likely to be significantly affected. The other sort of doctor, locum medics used by the NHS, are another widely affected group.

    It’s obviously much easier for HMRC to go after the public sector organisations and get them to be tax collection agents for a wider range of income tax, than it is for to chase the Amazons and Starbucks of this world in avoiding corporation tax.

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