Blog: A working definition


Blog for students
15 November 2017
13     11

UKCISA Advice and Training Officer Andrew Humphrey looks at the ever-evolving world of work and business -- and the almost-never-evolving Tier 4 work conditions that restrict students from taking many types of work and other opportunities.

The Central Arbitration Committee has ruled that Deliveroo drivers are self-employed. This means that someone with a Tier 4 visa cannot do it. Meanwhile last month the courts upheld a tribunal decision that Uber should treat its drivers as part-time employees, not self-employed, and so a Tier 4 visa holder can do it. This is just the latest example of how the Tier 4 work conditions are not only confusing but how they do not reflect the ways the world of work is changing.  This blog breaks down what the Tier 4 work conditions say, and how they apply to real-world contemporary examples of work that students may want to do.

People like me who work in the education sector can choose to work remotely from home, and we have opportunities for self-employment and for voluntary work. Plus, the tools of entrepreneurship and e-commerce are at everyone's fingertips these days. For me personally, as well as my job as an adviser and trainer with UKCISA I do some voluntary English teaching for a refugee charity, I am an independent Manager for a direct sales company, and I help my friends' 12-year-old son with his food blog and related social media.

So that’s all great for me, but what about you?  

Most Tier 4 students can work up to 20 hours a week during term time, although some are restricted to 10 hours, and some have a work prohibition. Check your visa vignette or biometric residence permit for your work conditions, and see UKCISA's guide to working during your studies.

If you can work, I'm sure you are keen to maximise your opportunities for paid work, for gaining work experience, and for the other social and cultural benefits of working. But have the changes in technology, communications, business practice and work culture in the UK that benefit me also expanded the work you can do within the Tier 4 work restriction? 

Yes. And no.

If you need to check whether a specific activity is allowed under your Tier 4 work conditions, it all starts with paragraph 6 of the Immigration Rules which defines "employment" for all types of visa. It says that  “employment includes”:

  • paid and unpaid employment,

  • paid and unpaid work placements undertaken as part of a course or period of study

  • self employment

  • engaging in business or any professional activity

That word “includes” allows for other activities to be considered employment.  The specific types of employment that a Tier 4 migrant can take are listed in Paragraph 245ZW(c)(iii) of the Immigration Rules.  This says that you can take “No employment, except…”, followed by a list numbered (1) to (8) of what you can do. The list confirms that:

  • “Paid and unpaid employment” is fine, within your 20 (or 10) hours per week restriction during term-time, and with no time limit in vacations.

  • There is a prohibition on working as a Doctor or Dentist in training, in professional sports including coaching, and on working as an entertainer. 

  • “Paid and unpaid work placements undertaken as part of a course or period of study” are separate from "paid or unpaid employment", so you can do both at the same time.

  • Being “self-employed” or being “engaged in business activity” is not allowed. Being self-employed normally means you are not on the employer's payroll but rather you manage your own workload, pay and tax. There is guidance on the gov.uk website to help ascertain if you are self-employed. For "business activity" the Tier 4 policy guidance for applicants gives three examples, including setting up as a sole trader. The three examples are “not an exhaustive list” but rather “examples of the types of circumstance in which you will be considered to be engaged in business activity.” 

  • You can work as a student union sabbatical officer.

  • If you apply to switch to Tier 2, Tier 4 Doctorate Extension Scheme or Tier 1 Graduate Entrepreneur, you can start the specific work that is allowed under those schemes.

Neither the Immigration Rules nor any related immigration guidance go into any further detail. This means that if your proposed employment does not fit securely into this definition, or if it is a "grey area", doing the work would be risky.  And what are the risks exactly?  Well, the Home Office treats work conditions very seriously.  They can remove you from the UK if you work too many hours or if you do work that you are not allowed to do. If you are removed, you may face a ban on re-entry for a certain period of time. The employer also faces penalties. Strictly speaking, your university or college is also obliged to report to the Home Office any students who are working illegally.

As an international student adviser, I am obliged to warn you about these dangers of illegal working, but please do not panic. 

First, stay focused on your current main purpose in the UK: full-time study.  

Second, remember that a Tier 4 visa specifically and explicitly does provide opportunities for work, but in effect just the sort of part-time and vacation work that international students have done for many generations. While this can be frustrating, it is very important to not take risks. It may seem preposterous for me to warn you against trading on eBay or babysitting, as I do below, but that is because the Immigration Rules and guidance lack any nuance about work that does not fall fair and square into standard part-time and vacation work for an employer.

Third, beware of taking advice about working from other students or from people on internet message boards. For a professional student immigration adviser like me it is worrying and discouraging to see students asking anonymous strangers online for immigration advice when they have access to trained, professional and FREE immigration advice at their university.  Your international student adviser is always the best source of information about any aspect of student immigration and visas. See also UKCISA's detailed guide to working during your studies.

What follows are some types of work that students ask about, and my replies about whether it is safe to do them within the Tier 4 work conditions. In every case I am referring back to the definitions above. 

A quick note about income tax in the UK:  income tax is normally deducted by your employer from your wages or salary under the Pay As You Earn scheme. If you receive income from other sources, for example tips, rent from a property you own, or other one-off payments this income may be liable for income tax.  For more details see the UK government's guide to who needs to file a tax return.

 

"Gig economy" jobs:  Uber, Deliveroo, DPD, MyHermes, etc.

In November 2017, the labour law body the Central Arbitration Committee (CAC) ruled that Deliveroo drivers are self-employed

Separately, Uber is challenging an employment tribunal ruling that Uber drivers should be treated as employees with holiday pay, paid rest breaks and minimum wage

The current position is therefore that this sort of work is self-employment so someone with Tier 4 leave cannot do it. 

For more information about how gig economy jobs fit in the working regulations, see the May 2017 Department of Work and Pensions report on self-employment and the gig economy

Professional sport

You cannot work as a professional sportsperson. This is defined in paragraph 6 of the Immigration Rules, and it normally means someone who is working in professional or semi-professional sport (paid or unpaid). It does also include someone who “in the past derived … a living from playing or coaching, [and who] is providing services as a sportsperson or coach at any level of sport”. However there is an exception if the current activity is “solely for personal enjoyment and [you are] not seeking to derive a living from the activity”.  So a student with a background in professional sports can coach a sports team as long as it is unpaid. This unpaid work counts towards the weekly 10 or 20 hours limit.

Any other sporting activities you do would normally be amateur, not professional. This includes being on a local or university sports team, and taking part in more formal organised events like the London Marathon or the Great North Run where you can participate alongside professionals.  

Large international sporting events often recruit temporary staff but this would come under the normal rules for part-time work.

Entertainer

You cannot work (paid or unpaid) as an entertainer. “Entertainer” is not defined in the Immigration Rules, but the Home Office's Business Help desk has stated (in an email dated 3 September 2015) that "We take it to mean … taking part in entertainment in any way other than as an amateur".  "Amateur" is defined in the Immigration Rules at paragraph 6 and it means “solely for personal enjoyment and not seeking to derive a living from the activity”. Therefore acting or performing as an amateur or just as a hobby is not working as an entertainer, and you can do it.  

There is also an exception for any performance that is an assessed part of your course. This is a concession contained in the Tier 4 sponsor guidance only (paragraph 6.8), not in the Immigration Rules.

See the separate information below on performing in television talent shows.

Resident Warden “on call”

If your total number of hours on duty, including overnight, are within your weekly maximum 10 or 20 hours anyway (including any other paid or unpaid work you are doing), that is fine.

However if counting all the hours on call, including any when you are not actively working or even asleep, would take you over your weekly 10 or 20 hour maximum, we advise that you get individual advice from both the Housing Services and the Human Resources departments at the university before accepting the job. The university may consider the whole on-call period as your working hours and pay you accordingly, or they may not.

In 2016 the Human Resources magazine Personnel Today published an interesting article about this issue, including links to relevant Employment Appeal Tribunal cases.

Selling on eBay, Amazon, Etsy, etc.

You can do this as long as you are not “trading”. The UK government's guidance on working for yourself says that “you’re probably not trading if you sell some unwanted items occasionally or you don’t plan to make a profit.” 

However one of the specific examples of “trading” is if you sell or make items for profit or if you “sell online, at car boot sales or through classified adverts on a regular basis”.  The information says “If you start working for yourself, you’re classed as a sole trader. This means you’re self-employed - even if you haven’t yet told HM Revenue and Customs (HMRC).”

Volunteering

Volunteering does not count towards your maximum 10 or 20 hours if it meets the definition of volunteering in the Tier 4 policy guidance (paragraph 315):

Students who are volunteering do not have a contract, they must not be a substitute for an employee and they must not be doing unpaid work – i.e. receiving payment in kind (although they are sometimes reimbursed for reasonable travel and subsistence expenses). Volunteers usually help a charity or voluntary or public sector organisation.

Any other kind of unpaid or voluntary work that does not meet this definition will count towards your weekly 10 or 20 hours maximum.
 

Online business, e-commerce

You cannot run a business at all while you are in the UK. The Immigration Rules give no exceptions for online businesses or for businesses where all the clients are outside the UK.
 

Passive income from affiliate marketing, clicks on your YouTube videos, etc.

While this is not one of the three named examples of “business activity” in the Tier 4 Policy Guidance (paragraph 308), it would reasonably be defined as a business activity, so best not do it while you are in the UK.

Someone who has become a YouTube celebrity after studying in the UK is Seong-jae Kong, known as Korean Billy. As part of our 2017 conference, Billy spoke to UKCISA about his time as an international student in the UK and how it has inspired his new career.
 

Working for an employer outside the UK

If you are physically outside the UK, your Tier 4 work conditions are irrelevant.  You need to check what are your work rights in the specific country where you are working.  However any work you do when you are physically in the UK, for example working for a non-UK employer remotely or doing a "virtual internship" with them counts towards your weekly 10 or 20 hour maximum. This is because the work restriction has no specific exception to not count work undertaken remotely for an employer who is outside the UK.

Digital nomad

A digital nomad is someone who harnesses technology, cyberspace and portals like Fiverr to create a freelance online working life that disregards international borders. They may spend time living in different countries, either making a living from freelance work conducted and sourced online, or through sources of "passive income".

This a very attractive idea in theory, and technology makes it perfectly feasible, but in reality it is only possible if your immigration status in the country where you are staying allows you to do freelance work. Your Tier 4 work conditions do not allow it, so you cannot be a digital nomad while you are living in the UK.

Owning or dealing in shares, stocks or currencies

You can buy and own shares, but if you own more than 10% of the shares in the company (including if they are held in trust for you) you cannot work for the company.  This is one of the specific examples of “business activity” in the Tier 4 Policy Guidance.

If you regularly buy and sell stocks, shares or currency in order to make money, this is highly likely to be seen as “business activity”.

If you make a dividend income from shares you own, you must pay income tax on this income.

Bitcoin mining

Neither the Immigration Rules nor any related guidance makes any specific provision for Bitcoin mining. It would be safest to assume that it is a “business activity”.

Separately, HMRC clarified in 2014 that any profits from Bitcoin mining are liable for income tax.

Direct sales: Amway, Avon, Tupperware, Thermomix, etc.

You cannot do this because independent consultants for direct sales companies are self-employed.  The company will not check your right to work because they are not your employer:  it is up to the individual consultant to monitor their own self-employment and any attached responsibilities, including whether their immigration status allows them to do the work.

Incoming from owning a property

Owning a property and deriving an income from rent is not self-employment, but you must pay income tax on the income you receive from rent.

Television talent shows, media appearances and contests of skill

In this tabloid newspaper article about a Chinese couple who entered the "Britain's Got Talent" contest in 2017 the producers of that specific programme say that participating is not considered employment and that winning the cash prize is not payment for employment.

If you decide to enter a contest that involves skills or performing, whether it is televised or not, check at an early stage whether the organisers have the same view that it is not employment. Of course, you will also need to check whether your academic schedule allows you the time to participate. 

It is possible that a paid or compensated appearance on television or in other media may be seen as a business opportunity.  However students with Tier 4 visas do sometimes participate in the popular academic television quiz show University Challenge. A very popular recent contestant was Eric Monkman, a postgraduate student from Canada. Monkman later returned to the UK to do a journalism internship and during this time (presumably now with a work visa) he was able to work on the BBC Radio 4 programme Monkman and Seagull's Polymathic Adventure.

 

Writing and publishing

When you formally publish your writing or other written or visual work, including self-publishing on Amazon, you are usually hoping that that people will buy it and that you will earn some money. Therefore it is highly likely to be seen as a business activity and you may not do it under the Tier 4 work conditions.

To avoid this, if you want to publish your writing or other work purely as an artistic expression or leisure activity or to share it with the public, do it through a (non-monetised) blog, social media or personal website. 

Focus groups, clinical trials

When you take part in a focus group, clinical trial or other similar experiment you are normally given some cash and usually some food and drink. The organisers will need to check your identity, usually your passport, but this is for their own statistical monitoring, not to check of your right to work because they do not consider it employment but "paid volunteering".

However, it would not meet the narrow definition of "volunteering" in the Tier 4 Policy Guidance (see above), so it does count towards your weekly maximum permitted working hours.

And while it is not self-employment, HMRC advises that payments for taking part in very well-paid clinical trials could be seen as income that is liable for tax:

There will be no tax or NIC liability arising on the individual if the sums received do no more than reimburse the individual’s reasonable costs of participating in the trial or research, including costs of travel and subsistence.

However should the sums paid exceed those reasonable expenses then the excess may fall to be chargeable to tax as Miscellaneous Income, potentially giving rise to personal tax liabilities of the individuals which should be notified to the Inland Revenue under Self Assessment.

Babysitting or dog-walking

Missing your young relatives? Wish you could have a pet in your student housing?

You can do dog-walking or babysitting while you are in the UK, but under the Tier 4 work restriction you can only do it unpaid.  This might seem disproportionate or overly strict, but remember that providing any service for payment, including babysitting, dog-walking or anything paid “cash in hand” is likely to be seen as self-employment or, at the very least, a "business activity".

My advice is treat these activities not as paid work but as a social opportunity and as a chance to experience aspects of the local culture different from your student life.

If you miss your young relatives, why not offer to babysit for free.  Think of the non-financial benefits: it's a fun and interesting opportunity to meet some local families and children and see how they live. Plus free WiFi and snacks usually come as standard.

Student housing normally does not normally allow pets, but the website BorrowMyDoggy.com connects you with local dogs who need walking and company, or where the owner just wants to give non-pet owners the chance to spend time with their dog. Walking a dog may give you an insight into the British public that you do not normally see, especially in cities: people will smile, stop to pet the dog, and ask you its name, breed, age, etc. Try it!   

 

Andrew Humphrey is an Advice and Training Officer at UKCISA. References to and quotes from the Immigration Rules and related guidance were correct at the time of publication, and this blog is updated when there are major changes, but some things may change.

 

So what do you think of the Tier 4 work restriction? Has it allowed you to do the work you want to do? What changes do you suggest?  Leave us your Comments below.

Please do not post questions asking for information or advice. For information please see our detailed guidance on working during studies, and for one-to-one advice please contact your international student adviser or our student advice line.  


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Salih
07 June 2017
Hi, i worked as an moderator for a GCSE language speaking exam. I just sent an invoice to the school for the payment, but the payment has not been processed yet. Having read this article, am i right to think that this would count as a self-employed work? Thanks
Andrew
12 June 2017
We cannot give one-to-one advice here Salih. Please contact your international student adviser for advice.
Samer
16 August 2017
Are all these rules applying for the (Tier4 dependant) visa holders also ?
Andrew
30 August 2017
No, this post is specifically about the Tier 4 work restriction. Someone with a different types of visa, including PBS Dependant, should check the specific work conditions or restrictions which are printed on their visa vignette or biometric residence permit.
Sen
05 October 2017
This was really helpful. I commend the writer for this effort and addressing real issues affecting tier 4 migrants in this millenium.

-tier 4 student
Andrew
09 October 2017
I'm delighted you found it useful Sen. Here at UKCISA we encourage all students to maximise their opportunities in the UK,
including working during their studies if they wish to.
Soheib
16 October 2017
Hello , thanks for these useful information , I would like to know which vacations we can work with no time limit , thanks
Andrew
16 October 2017
See our detailed guidance at Working > How many hours can you work? > What is term-time? Your university can advise on what there the specific term-dates (and hence vacation dates)
Saurab
18 October 2017
Can I buy cryptocurrencies here in UK with tier 4 visa status.
Andrew
18 October 2017
A work restriction on your visa does not prevent you simply buying or owning things or products. However buying and selling anything in order to make money would reasonably be a "business activity", which is not allowed. I cover this in the sections above on Selling on eBay, amazon, Etsy, etc., Income from owning a property, Owning or dealing in shares, and Bitcoin mining.

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