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The Caterer

Employing foreign nationals

28 July 2004
Employing foreign nationals

The problem Food manufacturing and hospitality industry employers frequently encounter difficulty in filling vacancies from the UK job market. And the mainstream work permit scheme, aimed at higher skilled positions, has been of little assistance.

The Law
In recognition of the problem, the Government introduced a pilot Sector Based Scheme (SBS) in May 2003, which allows employers to bring in workers from countries outside the European Economic Area to fill certain jobs in the catering and food-processing industries.

That scheme, due to expire in January 2004, has been extended for a further 12 months, during which time its impact on UK industry will be examined. The existing rules and guidance will continue to apply.

Expert advice
SBS work permits are available to bar staff, chefs at NVQ level 2 and below, cleaners (in staff canteens and restaurants), food service operatives, housekeepers, kitchen assistants, room attendants, and reception, concierge and waiting staff.

In food manufacturing, work permits can be issued for fish filleters, packers and process operatives, animal gut removers, meat bone breakers and extractors, meat cutters and packers, meat cold store operatives, meat slaughter staff, lairagemen and mushroom processors.

Workers must be aged between 18 and 30 to qualify, and the vacant position must be full-time (minimum 30 hours a week). Permits are temporary and allow the employee to work in the UK for a maximum of 12 months.

After expiry, further applications will be granted for the same worker only where he or she has left the UK for two months between permits, or where the initial permit was for less than 12 months. Workers are not allowed to bring spouses or dependants with them.

Employers must demonstrate that they cannot fill the jobs from the UK labour market. This normally involves advertising the job for at least four weeks in the six months before application. Posts must be advertised through a Government job centre and the European Employment Service.

On application, Work Permits UK (WPUK) will request copies of documentation relating to the advertisement. The job description advertised must be as accurate and detailed as possible. Employers will need to document the total number of applicants for the position, those who are shortlisted for interview and, for each "resident worker", the reasons why they were unsuccessful.

Employers are charged £74 for each application, unless the employee is a citizen of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia or Slovenia (the new member states of the EU).

The employer, not the prospective employee, must apply for the permit and pay any fees. The initial application is made to WPUK. Once it's granted, nationals of most countries must apply for entry clearance at a British embassy or consulate outside the UK.

No visa or entry clearance is required for nationals of the new member states. Applications are made on form SB1, available from: www.workpermits.gov.uk.

Employers which haven't applied for any kind of work permit in the past five years must demonstrate that they are UK-based, with a presence in the UK, and can offer genuine vacancies. The WPUK website lists acceptable supporting documents.

SBS holders can change employer provided the new employer meets the requirements of the scheme and the total period in the UK doesn't exceed 12 months. The new job must be of the same type as the old one. In this situation, there is no need to leave and re-enter the country. A new work permit must, however, be obtained.

There is no limit on the number of times an SBS permit can be held.

SBS holders are entitled to the same wages and conditions as other employees doing similar jobs.

To qualify, individuals need to be outside the UK during the application process. Therefore, overseas nationals already in the UK in another capacity cannot switch into this category of employment. But SBS holders may switch to other immigration categories, subject to meeting necessary criteria.

Check list
Before making an application, employers should ensure that:

  • The post is covered by the scheme.
  • The prospective employee is eligible.
  • The advertising requirements have been complied with.
  • They have the correct supporting documentation.

Contacts
Lisa-Jane Bland, Steeles (law) llp
Tel: 01603 274700
E-mail: noremp@steeleslaw.co.uk

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