Employing workers from overseas

Many hospitality businesses in the UK are turning to workers from overseas to fill existing skills gaps.

But employers have to be careful to follow the correct procedures, or they could find themselves landed with a hefty fine.

Do overseas nationals need a work permit for the UK?

Yes, unless they have:

• a passport from a company belonging to the European Economic Area (EEA). These countries are listed below.
  or
• an existing or pending UK immigration status. For example, they might have an immigration status based on marriage to a British citizen, which allows them to work, or have a one of several stand-alone immigration statuses, such as those for highly skilled workers.

However, most legal overseas workers will be admitted to the UK on the basis of a work permit.

As well as a work permit, most overseas employees will need an Entry Clearance visa (see below), which is applied for after the work permit is issued.

The European Economic Area (EEA)

The member states of the EEA are:-

Nationals of those states marked with an asterisk must be registered under the Worker Registration Scheme to work in the UK. Employers who employ unregistered EEA nationals are liable to prosecution and a fine.

The Worker Registration Scheme

Under the Worker Registration Scheme, workers from those countries marked with an asterisk above have to apply, within one month of taking up employment, for a Registration Certificate authorising them to work.

Employers who employ workers not authorised under the scheme will commit a criminal offence if an employee has not applied for a registration certificate within one month of starting employment.

Employees have to apply on a Form WRS, which can be downloaded from the home office work permits website at http://www.workingintheuk.gov.uk

Applicants will receive a registration certificate. Employers should keep a copy of the employee's application and obtain the registration certificate for the length of their employment.

Other EEA nationals

There are no formal registration requirements for EEA nationals not marked with an asterisk in the list above .
However, employers should make sure they have checked the eligibility to work of all employees, regardless of their status or apparent nationality (see "illegal working" below).

Work permits

There are different types of work permits, but most types require an application by an employer rather than the employee concerned.

The work permit will be issued to an employer in respect of a named employee, and is valid only for that employer, employee and job, and is not transferable.

Business and commercial work permits

Business and commercial work permits are normally issued only for individuals with the following specified skills:

• or
• HND-level occupational qualification
  or
• A general HND-level qualification plus one year's work experience in the type of job for which the person is sought
  or
• A high level of specialist skills required through doing the job for at least three years.

There are two types of application: Tier 1 and Tier 2.

Applications are made on Form WP1. Application forms and guidance notes are available from a division of the Home Office, Work Permits UK.

They can be downloaded from the Home Office website at: www.workingintheuk.co.uk

The general criteria are:

• The post matches the qualification and experience criteria set out above
• A genuine vacancy exists
• There is no suitable "resident labour" (ie, a person who doesn't need a work permit to work in the UK) available to fill the post offered (this is not relevant for a Tier 1 application - see below)
• The employer has made adequate efforts to find a worker from suitable "resident labour" or from other member states of the EEA
• The person is suitably qualified and experienced for the role

Tier 1

Applications will meet the Tier 1 criteria if the post matches the skills criteria set out above and one of the following conditions applies:

• It is an internal transfer within a multinational company (ie, an employer is transferring an employee of at least six months' standing from overseas to the UK in a role in which their skills, knowledge and experience in the overseas role will be required)
• The post is at board level
• The post is new and essential to inward investment
• The post is an occupation recognised by the Work Permits UK as being in short supply. Hospitality jobs are not currently included in the list, but they do fall within the Sector-Based Scheme (see below).

Tier one applications do not need to be supported by evidence of education or qualifications or reference, and do not need to be advertised in advance.

Tier 2

Tier 2 applications are required for all applicants not meeting the Tier 1 criteria. They require proof of qualifications and experience, evidence of employment history and details of a recruitment search or advertising within the Home Office criteria.

An employer wishing to make a Tier 2 application must consider:

• Whether the vacancy can be filled by promoting an existing worker, with extra training if commercially viable
• Advertising a vacancy in the local, national or EEA press and in an appropriate trade or professional journal
• Whether it will be able to send copies of any advertisements with the application for the permit and to give full details of the results of the advertising, or
• Whether a dedicated recruitment search has been undertaken by specialist recruiters, evidence can be provided of the search and no suitable "resident" candidate can be found.

A full explanation must be given if the employer considers that it would be unproductive or commercially unviable to search the UK or EEA labour market for a suitable employee.

What is the application procedure?

An employer should submit an application on Form WP1 for a work permit no more than six months before it is needed. Work permits are valid for up to five years. Those issued for a shorter period may be extended on application if the Home Office is satisfied its criteria are met.

The Training and Work Experience Scheme (TWES)

This is an alternative form of work permit, usually issued for a maximum period of 24 months. There is an embargo of at least 12 months on the individual returning to the UK under the work permit scheme at the end of a TWES.

TWES permits are suitable only for employees with graduate-level skills to whom an employer is offering work experience at a level commensurate with their skill and experience.

Sector-Based Scheme (SBS)

The SBS allows workers from outside the EEA to enter the UK to take short-term or casual jobs. Unlike other types of work permit, the SBS is subject to quotas and closes to new applications when the maximum number of permits is issued.

The SBS is exclusive to the hospitality Industry (hotel and catering work) and the food manufacturing industries.

Hospitality jobs that qualify under the SBS include bar staff, chefs (at NVQ level 2 and below), cleaners, canteen staff, food service operators (serving food), housekeepers, kitchen assistants, room attendants, receptionist staff and waiting staff.

An employer must apply for and receive the SBS permit before the individual travels to the UK.

SBS permits last for twelve months and employees are expected to leave the UK when their permission is finished.

There is a two-month embargo on returning to the UK at the end of a SBS permit.

SBS employees are allowed to move between employers while their permit is valid, but only if they are performing the same kind of duties as under the initial SBS permit.

A new employer must apply for a new SBS permit before the employee starts work.

SBS permit holders are not permitted to bring their dependants to the UK.

Is it OK to employ asylum-seekers?

An employer may only employ an asylum-seeker if that person has been given permission to work by the Home Office.

Illegal working

Employers are legally liable if they employ an illegal immigrant or someone without the appropriate permission to work.

It is a criminal offence to employ a person requiring immigration permission to take a job where they do not have that permission.

Since January 1997 employers face fines ouf up to £5,000 is they employ a person subject to immigration control who does not have permission enter and remain in that employment.

Individual managers and directors can be held personally liable as well as the employer as a company.

Under the law, as long as the employer wasn't actually aware that an employee was working illegally, they have an automatic defence if they can prove that the employee produced, and they have copied, and kept the copy of, an original document from a set list (see below) indicating that the the employee was entitled to take that employment.

It is very important that all prospective employees are treated in the same way when asked to produce documents, regardless of apparent or believed ethnic or national origin. To treat some employees differently on these grounds could give rise to race discrimination claims.

The list of required documents is subdivided into List 1 and List 2.

List 1 comprises passports, ID cards and other specified travel documents which are acceptable as stand-alone evidence that a person can work in the UK

List 2 is only relevant if a List 1 document cannot be produced. It describes other documents which now need to be produced in tandem, and in particular combinations.

For full details of List 1 and List 2, and guidance on interpretation of the rules, see the "illegal working" section of the Home Office website at http://www.ind.homeoffice.gov.uk

Visas and entry clearance

Non-visa national work permit holders whose permits are issued for more than six months must apply for a pre-entry clearance visa before coming to the UK.

The application must be made after a work permit has been issued at a British mission (ie, consulate, embassy or high commission for the country in which the employee normally lives) before coming to the UK. A work permit holder arriving without entry clearance is likely to be refused admission on arrival in the UK.

More information can be found on the following Government websites:

http://www.workingintheuk.gov.uk

http://www.ind.homeoffice.gov.uk

by Matthew Davies
Matthew Davies is a solicitor and senior associate at law firm Fox Williams