Foreign Nationals, Employment Of

Key points

§  Under section 8 of the Asylum & Immigration Act 1996 (which came into force on 27 January 1997), employers are liable to fines of up to £5,000 (for each offence) if they employ persons aged 16 or over who are either illegal immigrants or who do not have a legal and subsisting right to seek and obtain employment during their stay in the UK.

Note

Prosecutions will be brought not only against the body corporate but also against the individual director, personnel manager, company secretary, or other manager or supervisor identified as having been directly responsible for recruiting any such person.

§  In short, employers are nowadays duty-bound to check the P45, (which will include a successful job applicant's permanent National Insurance number), or the birth certificate, passport, identity card, certificate of registration or naturalisation as a British Citizen, a letter from the Home Office, or any other document containing a National Insurance number of any person aged 16 or over applying for work under a contract of service (ie as an employee) to ensure that he (or she) has been granted leave to enter or remain in the United Kingdom and that there is no current restriction preventing that person from taking up employment in the UK (per the Immigration (Restrictions on Employment) Order 1996). A Home Office booklet titled Prevention of Illegal Working – Guidance for Employers is available on enquiry to the Home Office Public Enquiry Point. Employers wary of the validity of any documents presented by a foreign national can obtain further advice by telephoning the Home Office's Immigration & Nationality Directorate Helpline on 020 8649 7878.

§  To avoid a complaint of unlawful discrimination on racial grounds, an employer would be well-advised to modify his recruitment procedures to ensure that similar checks are made for every successful job applicant and that copies of the relevant documents are made and retained on file for so long as a successful job applicant continues to be employed. Section 8 of the 1996 Act is not retrospective and does not apply to persons employed before 27 January 1997. However, it does apply to any such employee who resigns or is dismissed and subsequently reap- plies for work for the same organisation. Section 8 does not apply to self-employed persons (who work under contracts for services).

Note

The Commission for Racial Equality (CRE) has published guidance notes for employers titled The Asylum & Immigration Act 1996: Implications for Employers, copies of which are available on request from Central Books, 99 Wallis Road, London E9 5LN (Tel: 020 8986 4854).

Codes of practice

§  Under Section 8A of the 1996 Act, the Home Secretary is duty-bound to issue a code of practice as to the measures which employers should take (or not take, as the case may be) in order to avoid allegations of unlawful discrimination when establishing the legal right of any job applicant 'subject to immigration control' to enter (or remain) in the UK or to take up employment while in the UK.

§  In preparing a draft of the code, the Home Secretary must consult the Commission for Racial Equality (CRE) or (in Northern Ireland) the Equality Commission, and such organisations and bodies as he considers appropriate. The draft must then be laid before both Houses of Parliament, after which the Secretary of State may bring the code into operation by an order made by statutory instrument.

§  The Home Office has since produced a draft Code of Practice 'for all employers on the avoidance of race discrimination in recruitment practice, while seeking to prevent illegal working'. The draft code (which may or may not be in force by the time this edition goes to press) may be accessed and downloaded from website www.ind.homeoffice.gov.uk/default.asp?pageid=270. The draft code draws heavily on the Commission for Racial Equality's Guide (Racial Equality and the Asylum & Immigration Act 1996: A guide for employers on compliance with the Race Relations Act 1976) (ISBN 1 85442 191 3), copies of which are available free of charge from CRE Customer Services, PO Box 29, Norwich NR3 1GN (tel: 0870 240 3697; fax: 0870 240 3698, email: CRE@tso.co.uk).

Immigration rules

§  Home Office rules relating to the entry into and the stay of persons in the United Kingdom are to be found in the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23 May 1994 under section 3(2) of the Immigration Act 1971. The Statement (ISBN 0 10 239594 2) may be obtained from The Stationery Office. When ordering the Statement, readers should take care to ask for copies of all subsequent amending statements.

Work permits and procedure

§  As a rule, foreign nationals subject to immigration control will not be permitted to enter the UK to seek or take up employment unless they have valid work permits issued to prospective UK employers on their behalf.

§  That said, work permits are not needed for:

o    nationals of Member States of the European Economic Area (EEA);

o    citizens of Switzerland;

o    citizens of British Overseas Territories (ie, Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Monserrat, Pitcairn Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands) – except those from Sovereign Base Areas in Cyprus;

o    Commonwealth citizens given leave to enter or to remain in the UK on the basis that a grandparent was born in the UK; and

o    spouses and dependent children of existing work permit holders, and of any of the above – provided that the endorsement in their passports places no restriction on their employment in the UK.

Nor are work permits required by certain foreign nationals coming to the UK for employment in their own fields (eg, doctors, dentists, journalists, etc) all of which is explained in the current Statement of Changes document referred to above.

Note

A Commonwealth citizen who has been given limited leave to enter the UK may later establish a claim to the right of abode. If he (or she) can show that, immediately before the commencement of the British Nationality Act 1981, he was a Commonwealth citizen born to a parent who, at the time of the birth, had citizenship of the United Kingdom and Colonies by his birth in the UK or in any of the islands, the time limit on his stay in the UK should be removed.

Restrictions on the issue of work permits

Work permits will be issued only for work requiring people in the following categories:

§  those with recognised degree level or equivalent professional qualifications;

§  senior executive staff;

§  highly qualified technicians with specialised experience;

§  senior employees in multi-national companies transferring to the UK office for periods of career development;

§  entertainers, sports persons and models; and

§  others whose employment is, in the opinion of the Secretary of State, in the national interest.

§  'Key workers' (so-called) are overseas nationals having technical or specialised skills and expertise essential to the day-to-day operation of the organisation by which they are to be employed. They need not hold high academic or professional qualifications, but they must possess specialised knowledge or experience not readily available in the UK or in the European Community (EC). Furthermore, their employer must demonstrate that the jobs of others depend on them.

Employees who have extensive knowledge of languages and cultures not readily available in the UK or EC, and whose jobs involve spending at least 60 per cent of their time in contact work using that knowledge, may also qualify as 'key workers'.

Short-term low skilled work permits

§  On 7 October 2002, the Home Secretary announced that from early 2003, two new managed migration schemes will be introduced to allow employers in the food manufacturing and hospitality industries to recruit short-term low-skilled workers from overseas to help ease recruitment difficulties. More information about the proposed new schemes can be obtained by emailing WP(UK) on managed-migration.workpermits@wpuk.gov.uk.

Work permit procedure: overview

§  UK employers seeking to employ a foreign national subject to immigration control, who needs permission to work in the UK must apply for a so-called 'business and commercial' work permit from Work Permits (UK) a branch of the Home Office's Immigration & Nationality Directorate. Applications may be submitted by post or electronically (ie, by email). The prescribed form for these purposes is form WP1, copies of which can be obtained either by downloading them from website (www.workpermits.gov.uk) or by telephoning WP(UK)'s distribution centre on 08705 210224. Applications for permits to work in the Isle of Man, Jersey and the Channel Islands must be sent to the relevant agencies in those areas (listed at the end of this section). Form WP1 makes provision for two types of application: a Tier 1 application or a Tier 2 application. The criteria for each type of application are discussed later in this section. Applications to extend existing work permits must be submitted on Form WP1X.

Note

Employers wishing to provide a foreign national with work experience or training leading to a recognised professional qualification must apply for a Training & Work Experience Scheme (TWES) permit (discussed later in this section).

§  It is important to note that it is the would-be employer who must apply for a work permit (not the foreign national) and it is the putative employer who will be issued with the work permit and who must forward it to the person named in the permit in his or her country of residence. Possession of a work permit does not override the foreign national's need (if any) to obtain a visa before entry to the UK. Work permits are not transferable and will not enable the holder to work for any other employer in the UK unless that other employer applies for a work permit on the existing permit holder's behalf. A move to a different job within the same organisation will also require a fresh WP1 application to WP(UK). A person who has remained in the UK for four years under a full business and commercial work permit may apply to the Home Office for leave to remain in the UK indefinitely. Applications for extensions to existing work permits must be submitted on Form WP1X.

First-time applications

§  UK employers who have not previously applied for work permits (or have not done so within the previous four years) will be asked to supply copies of their latest audited accounts or their latest annual reports. If neither of those is available, they must produce documents that show that they are trading in the UK or are under contract to do so. Those who are in a professional partnership will need to produce a copy of one of the partner's registration with the appropriate professional body.

Postal applications

§  An application for a work permit submitted by post will normally be acknowledged within five working days, giving the name, telephone number or email address of the person or team with WP(UK) who will be dealing with that application. Most work permit applications will be decided within a week, unless the application form has not been correctly filled-in or is not accompanied by the necessary supporting documentation. Postal application for permits to work in Great Britain and Northern Ireland should be sent to the appropriate business team at the address given at the end of this section.

Applications for permits to work in the Isle of Man or the Channel Islands should be sent to the addresses given at the end of this section.

Electronic applications

§  Employers with access to the Internet may e-mail their work permit applications to WP(UK). As electronic applications cannot be 'signed' in the usual manner, applicants who have not already done so must first register their details electronically with WP(UK) in exchange for a unique eight-character Personal Identification Number (or PIN). This will be acknowledged within 30 minutes, followed within the next 30 minutes by confirmation of the applicant's company or business name, postcode and PIN. The PIN acts as a signature and must be entered on every email application. The electronic version of Form WP1 is 'smart', in the sense that certain questions on the form will appear or disappear in response to the applicant employer's answers. The form has been designed in such a way as to enable it to be saved and despatched to WP(UK) as an email attachment. Scanned images of supporting documents, such as certificates confirming the relevant foreign national's education and qualifications can also be sent by email. However, passports and police registration certificates (if required) must still be sent by post to reach WP(UK) within five days of the emailed application. For extensions to existing work permits, the prescribed electronic form is Form WP1X.

Criteria for work permit applications

§  There are two main types of work permit application – Tier 1 and Tier 2 applications. Tier 1 applications, which are quicker and easier to process than Tier 2 applications, are reserved for multi-national companies with offices in the UK who wish to transfer senior employees with specialist skills, knowledge or experience to the UK or who wish to relocate more junior members of staff (with degree level qualifications and at least 12 months' experience in their jobs) for career development purposes. A Tier 1 application is also required when an overseas national is appointed to the board of a UK company or where the employment of an overseas national in the UK will result in inward investment of at least £250,000 and the creation of jobs for EEA nationals. UK employers may also submit Tier 1 applications in respect of so- called 'shortage occupations' (see below) for which WP(UK) acknowledges that there is an insufficient number of suitably-qualified resident workers within the EEA. However, WP(UK) will not consider Tier 1 applications under the 'shortage occupation' category (requiring a rare level of skills, knowledge and experience) if the occupation itself is not in short supply. In the latter situation, the employers in question will need to submit a full Tier 2 application.

§  All other work permit applications will be considered under Tier 2. Employers submitting Tier 2 applications for the employment of foreign nationals subject to immigration control will need to explain why they have been unable to recruit suitably-qualified resident workers to fill the vacancies in question. They must also give details of their recruitment methods, explain their reasons for rejecting otherwise qualified job applicants from within the EEA, including those amongst them who might well have been capable of doing the job with a little extra training. To that end, they must not only provide copies of job advertisements placed in EEA national newspapers or professional journals (or on the Internet) but must also must satisfy WP(UK) that the prominence given to those advertisements truly reflected the level and nature of the vacancies in question. An application for a Tier 2 business and commercial work permit will normally be refused if the applicant employer is unable to satisfy WP(UK) concerning the non-availability of a suitably qualified 'resident' or 'settled' worker' In short, employers will need to satisfy WP(UK) that their attempts to recruit suitably-qualified candidates from within the EEA have been unsuccessful.

§  Work permit applications are considered against four basic criteria. These are:

o    whether the vacancy for which the permit is required is a genuine vacancy;

o    the skills, qualifications and experience needed for the job;

o    whether the person named in the application is suitably qualified or experienced; and

o    whether there are suitably qualified or experienced 'resident workers' available to fill the vacancy in question.

For these purposes, the term 'resident worker' means a person who is an EEA national, citizen of Switzerland, a citizen of a British Territory Overseas, or who has settled status in the UK within the meaning of the Immigration Act 1971.

Skills, qualifications and experience criteria

§  To qualify for a work permit, the job must require the intended occupant to have:

o    a UK-equivalent degree level qualification; or

o    a Higher National Diploma (HND) level qualification which is relevant to the post on offer; or

o    a HND level qualification which is not relevant to the post on offer, plus one year of relevant work experience, or

o    three years' experience of using specialist skills acquired through doing the job for which the permit is sought, at National/Scottish Qualification (N/SVQ) level 3 or above.

Furthermore, the person for whom a work permit is sought should have the skills, qualifications and experience to do the job in line with those criteria. WP(UK) will not take account of any experience gained by a foreign national while working illegally in the UK.

§  WP(UK) does not issue work permits for low level or unskilled jobs (eg, manual, clerical, secretarial or similar) or for domestic work, such as nannies or housekeepers. Nor does it issue work permits for self- employment if the person in question will be self-employed on his or her own, or in a partnership or by joining an existing business. Nor will persons qualify for a work permit simply because they have, or have had, a significant shareholding or beneficial interest in the UK company for whom they intend to work, or in a connected business.

Shortage occupations

§  As indicated earlier, employers may submit Tier 1 applications in respect of so-called 'shortage occupations' for which WP(UK) acknowledges that there are acute shortages of suitably qualified and skilled workers within the resident labour market. The current approved list of shortage occupations includes electronic engineers and physicists of IENG (or equivalent level in cellular phones systems development, integrated circuit design, opto-electronics, photonics, systems integration, telecommunications systems development, video and audio systems development, radio frequency and microwave system and component design, and design and development of electronic systems with embedded software. The list also includes railway planners or engineers, etc (with engineering degrees and at least two years' relevant experience from a civil, structures or electrical background); structural and bridge engineers; transportation and highways engineers; consultants, doctors, nurses, physiotherapists, dieticians, etc; actuaries, CAA licensed aircraft engineers, teachers, and veterinary surgeons. The list of 'shortage occupations' is amended and updated regularly on website www.workpermits.gov.uk/default.asp?pageid=3019 or may be obtained by telephoning WP(UK) on 0114 259 40l4.

Changing employers and occupations

§  It should be stressed that a work permit is issued for a specific job with a specific employer. A work permit does not constitute a contract of employment between an employer and an overseas worker. It does not authorise the employer to retain the overseas national in employment if that person does not wish to remain, nor does the employer require permission to terminate the employment. Similarly, an overseas worker is not permanently restricted to the particular job for which the work permit was originally issued. However, he will be expected to remain in the same occupation and will not be permitted to start work with another UK employer unless that second employer applies to the Employment Department for a work permit using Form WP1. In other words, the whole process must begin again.

§  The same rule applies if an employer wishes to employ an overseas national in a different capacity to the one for which the work permit was originally issued. He must apply again on Form WP1.

Training and work experience scheme

§  The Training and Work Experience Scheme (TWES) is a scheme operated by the Department for Education & Skills (DfES). Its primary purpose is to help developing countries by allowing their citizens to receive training in the United Kingdom that is not readily available to them at home. However, the Department will also consider applications for overseas nationals who do not come from a developing country. Permits may be issued for an initial period of up to three years. The scheme also allows young overseas nationals of non-EEC countries to come to the UK for short periods of employment intended only to broaden their industrial or commercial experience and, if appropriate, to improve their knowledge of English. Approval will not ordinarily be given for training or work experience leading to employment in the UK. Applications for work permits under TWES may be submitted either electronically or by post, on Form WP1.

Working holidays

§  Young Commonwealth citizens, aged 17 to 27 inclusive, who satisfy the immigration officer at the port of entry that they are coming to the UK for an extended holiday before settling down in their own countries, and that they intend to take only employment which will be incidental to their holiday, may be admitted for up to two years provided that they have the means to pay for their return journey and on the strict understanding that they will not have recourse to public funds during their stay. Work deemed 'incidental' to a holiday is defined as engaging in full-time employment (ie, for more than 25 hours a week) for 50 per cent or less of the working holiday. Alternatively, working holidaymakers may engage in part-time work for more than 50 per cent of their stay in the UK on the understanding that they must have a holiday period at some point. For up-to-date information on the Working Holidaymaker Scheme, the reader is commended to website www.workpermits.gov.uk/default.asp?pageid=2907.

General information

§  For permits to work in the Isle of Man, prospective employers should write to:

Overseas Labour Section
Employment Division
Department of Industry
Division House
31 Prospect Hill
Douglas
Isle of Man
IM1 1QS
Tel: 01624 687025
Fax: 01624 685682

§  For permits to work in Jersey, prospective employers should write to:

Chief Inspector of Immigration
Immigration & Nationality Department Maritime House
La Route du Port Elizabeth
Jersey
JE1 1JD
Tel: 01534 838838
Fax: 01534 838839
Email: immnatjy@super.net.uk Website: www.jersey.gov.uk/immigration

§  For permits to work in Guernsey, prospective employers should write to:

Chief Immigration Officer
Immigration & Nationality Department White Rock
New Jetty
St Peter Port
Guernsey
GY1 3WJ
Tel: 01481 726911
Fax: 01481 712248

Further information

§  Applications by UK employers for business and commercial work permits are dealt with by the following business teams at WP(UK). The alphabetical letters (shown in brackets alongside each of the business teams) refer to the first letter of the employing company or organisation. For example, an application by a business or company whose name begins with 'F' should be sent to Business Team 4 (or BT4).

Business Team 1 – (Employers A & Teaching)
bt1.workpermits@wpuk.gov.uk
Tel: 0114 259 4425
Fax: 0114 259 4073

Business Team 2 – (Employers B & D)
bt2.workpermits@wpuk.gov.uk
Tel: 0114 259 6665
Fax: 0114 259 6668

Business Team 3 – (Employers C & E)
bt3.workpermits@wpuk.gov.uk
Tel: 0114 259 3290
Fax: 0114 259 3345

Business Team 4 – (Employers F to H)
bt4.workpermits@wpuk.gov.uk
Tel: 0114 259 4810
Fax: 0114 259 4775

Business Team 5 – (Employers I to L)
bt5.workpermits@wpuk.gov.uk
Tel: 0114 259 3322
Fax: 0114 259 3324

Business Team 6 – (Employers M & N)
bt6.workpermits@wpuk.gov.uk
Tel: 0114 259 3150
Fax: 0114 259 3620

Business Team 7 – (Employers O to R)
bt7.workpermits@wpuk.gov.uk
Tel: 0114 259 4071
Fax: 0114 259 3707

Business Team 8 – (Employers S & T)
bt8.workpermits@wpuk.gov.uk
Tel: 0114 259 1110
Fax: 0114 259 1245

Business Team 9 – (Employers U to Z)
bt9.workpermits@wpuk.gov.uk
Tel: 0114 259 3664
Fax: 0114 259 3946

The following team deals with the Passport aspects of the work permit scheme.

Passports Team
passports.workpermits@wpuk.gov.uk
Tel: 0114 259 1001
Fax: 0114 259 1140

The following team deals with appeals against decisions on the work permit criteria; although the appeal must in the first instance be sent to the original team that dealt with the employer's application.

Appeals Team
appeals.workpermits@wpuk.gov.uk
Tel: 0114 259 5880
Fax: 0114 259 5566

The following team deals with allegations of abuse of the work permit scheme.

Allegations Team
allegations.workpermits@wpuk.gov.uk
Tel: 0114 279 3480

The following team deals with applications from the Highly Skilled Migrant Programme (HSMP).

Highly Skilled Migrant Programme
hsmp.workpermits@wpuk.gov.uk
Tel: 0114 259 1113

The following team provides effective policy development and advice to internal and external customers.

Policy Team
policy.workpermits@wpuk.gov.uk
Tel: 0114 259 3792
Fax: 0114 259 3776

The following team deals with all other queries relating to the administration of the work permit scheme.

Customer Relations Team
customrel.workpermits@wpuk.gov.uk
Tel: 0114 259 4074
Fax: 0114 259 3776

Postal applications

§  Postal applications for business and commercial work permits (for employment in Great Britain or Northern Ireland) should be sent to the relevant business team (eg, Business Team 5) at the following address:

(Team Name)
Work Permits (UK)
Integrated Casework Directorate (Sheffield) Home Office
Level 5
Moorfoot
Sheffield
S1 4PQ