Anne-Marie Boyle looks at work permits for overseas staff in commercial communications agencies.
With the increasing demand for advertising agenemand for advertising agencies with global clients to have a cultural mix of workers who can bring an international view to brands 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. [01.04.99]
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.
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 (including 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:
1. British Citizens, not unsurprisingly; and
2. 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
Citizens of the countries listed below may be exempt if they fulfil 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 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
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.
Tier one application
These are the most straightforward as they are less heavily scrutinised by the Overseas Labour Service (OLS – a division of the Department for Education and Employment). 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. The OLS has a list of such occupations, which mainly relate to medical posts.
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.
It is important to bear in mind that not all jobs will be considered appropriate for a work permit. The 3 main categories given by the OLS are:
degree or equivalent professional qualifications together with 2 years work experience;
senior executive positions;
highly qualified technicians with specialist skills
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.
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 the OLS which indicate that they are now prepared to consider evidence where head-hunters have been used. 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
the OLS 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.
In very exceptional circumstances, the OLS 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 4 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 Department for Education and Employment's website at www.open.gov.uk/dfee/ols.