With the increasing demand by advertiser agencies with global clients to have a cultural mix of workers who can give an international view to brand issues.
With the increasing demand by advertising agenciesnd by advertising agencies with global clients to have a cultural mix of workers who can bring an international view to brand and creative issues, the recruitment of overseas nationals brings with it immigration issues which should be taken into account by companies before the new employees arrive at Heathrow! Immigration law expert, Anne-Marie Boyle considers these issues, particularly with reference to the UK Work Permit Scheme This article also looks at the new Highly Skilled Migrant Programme which commences this month and is the Government's response to a perceived need to further increase the number of skilled foreign workers in the UK.[28.01.02].
Health Warning
In case you think that this will not apply to your business because you do not regularly recruit overseas nationals – think again! The Asylum and Immigration Act 1996 makes it a criminal offence for an employer to employ someone who is not legally entitled to work in the UK.
Since January 1997, companies have been required to keep evidence that they have checked one of a range of specified documents to prove that a potential employee is eligible to work. If a company fails to provide this on demand, they can be liable for a fine of up to £5,000. The UK Government have recently announced that they plan to take more active steps to stamp out abuse amongst companies who are hiring illegal foreign workers.
However, companies must ensure that any recruitment procedures do not discriminate against ethnic minorities which could amount to unlawful race discrimination. It is therefore advisable that questions regarding a person's ability to work in the country are left until the successful candidate has been identified, and, irrespective of their nationality (i.e. even if they appear to be British citizens), that person is required to provide one of the specified documents (i.e. passport, P45, national insurance number).
Does the prospective employee need a work permit?
Not all overseas nationals will require a company to go through the procedure of applying for a work permit. The 2 main categories for which a work permit unnecessary are:
British Citizens, not unsurprisingly; and
European Economic Area nationals
The Treaty of Rome and the Treaty on European Union (1993) (also known as the Maastrict Treaty) provides a right of freedom of movement to those member state nationals wishing to take up an offer of employment or search for employment within the EU. This now extends to all European Economic Area (EEA) members (a wider geographic area).
The following nationals will therefore automatically have the right to work in the UK:
Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden
Commonwealth citizens
Citizens of the countries listed below may be exempt if they fulfill certain specified criteria:
Antigua and Barbuda Namibia Australia Nauru The Bahamas New Zealand Bangladesh Nigeria Barbados Pakistan Belize Papua New Guinea Botswana St.Christopher and St.Nevis Britain St.Lucia Brunei St.Vincent and the Grenadines Canada Seychelles Cyprus Sierre Leone Dominica Singapore The Gambia Solomon Islands Ghana South Africa Granada Sri Lanka Guyana Swaziland India Tanzania Jamaica Tonga Kenya Trinidad and Tobago Kiribati Tuvalu Lesotho Uganda Malawi Vanuatu Malaysia Western Samoa Maldives Zambia Malta Zimbabwe Mauritius
If the Commonwealth citizens:
can prove that one of their grandparents was born in the UK; and
they are able to maintain and accommodate themselves in the UK without any recourse to public funds (i.e. social security)
they will be permitted to work in this country without the need to obtain a work permit.
Business visitors
Business people are permitted to enter the UK as visitors. Whilst they are in the UK they are entitled to "transact business". What constitutes "transacting business" is (unfortunately for companies) a grey area. Guidance from the Home Office suggests that this includes:
attending meetings and briefings
fact finding
negotiating or making contracts with UK business to buy or sell goods or services
as long as the individual does not take up employment in the UK. The maximum allowed for any one business visit is six months and is certainly worth bearing in mind for agencies with global offices.
On a practical level, it is helpful for business visitors to have a letter with them from their overseas employer confirming that they are employed by the company abroad (who is paying their salary) and they are coming to the UK to transact business only.
The main Work Permit Scheme
In many cases, however, your company will need to apply for a work permit on behalf of a prospective overseas employee. In general, the work permit scheme is designed to protect the home labour market. Therefore, the emphasis and the purpose of the application form is to determine whether a company has made their best efforts to find a suitable candidate for the position in either the UK or the EEA. Applications for a work permit are made under a "two tier" system.
It is important to bear in mind that not all jobs will be considered appropriate for a work permit. The 4 main categories given by the WPUK are:
EITHER – the following qualifications:
a UK equivalent degree level qualification; or
a Higher National Diploma (HND) level qualification which is relevant to the post on offer; or
a HND level qualification, which is not relevant to the post on offer plus one year of relevant work experience;
OR the following skills:
3 years experience of using specialist skills acquired through doing the type of job for which the permit is sought. This should be at National/Scottish Vocational Qualification (N/SVQ) level 3 or above.
Tier one application
These are the most straightforward as they are less heavily scrutinised by Work Permits UK (WPUK) – a division of the Home Office. However, they can only be made for very specific categories:
board or equivalent board level posts;
inter-company transfers of senior employees;
inter-company transfers for the purposes of career development of employees;
posts essential to new foreign investment in the UK;
posts which are acknowledged to have a short supply of potential employees in the EEA.
This last category is very important as it includes a number of IT related jobs, because there is a recognised IT skills shortage amongst the UK workforce. Therefore if the job you are looking to fill is one of the following:
Business Analyst
Network Specialist
Analyst Programmer
Database Specialist
Software Engineer
or involves any of the following technology areas:
Active server Pages/Activex
C and C++ programming languages
Cool:gen
Peoplesoft
SQL Server
XML/DHTML
Oracle – Data Base Administrator
Broadvision E-Commerce Tools
All customer relationship Management (CRM) and Computer technology (CTI) packages ( especially Siebel, Clarify and Oracle CRM)
your application for a work permit should be relatively straightforward and will not require prior advertising
Tier 2 applications
These take longer to process and will usually require prior advertisement of the post. There must, of course, be a genuine vacancy in the organisation and usually the company will have to prove that no suitable UK/EEA national is able to fill the post.
In making an application under tier 2, the company will be asked to provide evidence of the recruitment methods it has used, the candidates it has seen from the UK/EEA and details of why they were not suitable for the position. The company will have to show how the particular foreign national has the necessary skills and experience directly relevant to the job in question.
Advertising agencies have in the past had problems with the advertising requirements, because they tend not to use the more traditional newspaper/trade journals route. New work permits and guidelines have been issued recently by WPUK which indicate that they are now prepared to consider evidence where head-hunters have been used and where jobs have been advertised on the internet.
If your company only uses head-hunters then you will be asked to provide details of:
the terms on which the head-hunter was employed to carry out the search,
the methods used by them and any evidence to confirm this, and
WPUK will not normally accept evidence where the head-hunters have merely checked appropriate people on "their books". They will usually expect some sort of recruitment research to be carried out in both the UK and EEA.
As regards internet advertising it is up to the IT company to demonstrate that the website they have used is the most appropriate place to advertise the particular post.
Some example sites that WPUK accept for the IT sector are:
Topjobs.co.uk – for management, technical and graduate employment
Jobserve.co.uk – for IT posts
Visionit.co.uk – for IT posts
Gisajob.com – for IT posts
CoJobsite.co.uk – for IT posts
Jobs unlimited – for media, creative, marketing, environmental, educational, social work and other areas of the public sector
Stepstone.co.uk – general
Workthing.co.uk – general
Reed.co.uk – general
Manpower.co.uk – general
Monster.co.uk – general
City jobs – general
In very exceptional circumstances, WPUK will waive the recruitment for advertising or some sort of recruitment search. However, it must be stressed that this is only in very rare circumstances and recruitment searches should be conducted wherever possible.
Your company can ask for a work permit of up to 5 years. With any time period requested, the company will have to justify the need for the particular person for that length of time.
The work permit form and guidance for applying for a work permit is now available on the following website at www.workpermits.gov.uk
Highly Skilled Migrant Programme
The Highly Skilled Migrant Programme (HSMP) is significant because unlike the work permit scheme it will allow foreigners to settle in the UK before obtaining a job in the UK. In addition, the HSMP allows candidates already in the UK to apply if they are work permit holders or are students who are about to graduate. HSMP is different from the existing business immigration routes such as the Innovators scheme (for entrepreneurs) because it does not require a detailed business plan or investment in the UK.
Applications will be assessed on a points-based system. Applicants must score at least 75 points from the five following scoring areas: educational qualifications, work experience, past earnings, achievements in the chosen field, and there is also a specific category aimed at allowing overseas doctors to work as GPs in the UK.
The points system for educational qualifications offers a maximum of 30 points for a Ph.D., 25 for a Masters Degree and 15 for a Graduate Degree. An applicant would score 15 points for at least five years work experience in a graduate level job and an additional 10 points for two years working at a senior level or in a specialist position within a chosen field.
Points for past earnings have been adjusted to take account of different pay scales around the world. For example, in Japan or USA 25 points will be awarded for salaries of £40,000 whereas in Poland, Brazil or South Africa the same points would be awarded for a salary of only £25,000, and in China and India 25 points would be awarded for salaries of only £15,000.
In addition to scoring at least 75 points, applicants will also need to demonstrate the ability to continue to work in their chosen field in the UK, that they have sufficient funds or potential income to support themselves and their families, and that they are willing and able to make the UK their main home.
Successful applicants will be able to stay for a year, with further leave to remain after that if they have a steady job and can financially provide for themselves and their families.
The HSMP will initially run for a period of 12 months as a concession outside the current immigration rules.
For further information, please contact Anne-Marie Boyle on (Tel) 0117 910 7076 (Fax) 0117 910 7077 (e-mail) anne-marie.boyle@osborneclarke.com
