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Employment Law Services Ltd

Work Permits, Migrant Workers, & Foreign Workers

The UK has a large number of migrant and foreign workers. Quite often these workers perform work in lower paid manual and services work, such as in hotels, restaurants, agriculture, food packaging and processing, and logistics. However there is also a significant number of foreign workers involved in professional services, managerial positions, and the financial and investments sectors.

In order to be allowed to work in the UK a worker has to be able to establish their right to work there. Legislation requires employers to obtain proof of entitlement to work in the UK. This includes production of certain documentation, including a current valid passport, national insurance number, letter from the Home Office giving indefinite right of residence in the UK etc. Whether a worker has actually got the right to work in the UK significantly affects that persons' rights while in the UK. Most workers from countries within the European Union will be entitled to work in the UK but may need to register with the Workers Registration Scheme (see below) before commencing work.

Employers face a criminal conviction if they fail to take the appropriate steps to establish that a worker of theirs actually has the legal right to work in the UK. In order to avoid a claim of racial discrimination an employer should oblige all job applicants to supply proof of entitlement to work in the UK, not just those with a “foreign-sounding name”.

Migrant and foreign workers are entitled to be paid at least at the National Minimum Wage, they are entitled to be paid holiday, and rest breaks. They are entitled to protection from unlawful discrimination, an itemised pay slip and usual notice rights.

Employers and employment agencies are not allowed to hold a workers passport or any other official documents for longer than a day. An employer could be breaking the law if it holds onto a passport without the agreement of the relevant worker.

Worker Registration Scheme

Since 2004 most nationals from new EU states that wish to work in the UK for more than a month have been required to register under the Workers registration Scheme.

Workers that have registered under the Scheme, and have been working in the UK are able to apply for a residence permit. The application requires details of the worker’s name, address, date of birth, nationality and employment details. There is a charge with the application.

New Points Scheme

The Government has introduced a new points system for those wishing to come to work in the UK. The new system will to be introduced in certain Tiers over time. The different Tiers relate to the different categories of workers.eg. Tier 1 (General) covers highly skilled workers, such as entrepreneurs and scientists. Tier 2 covers skilled workers with a job offer to fill gaps in the UK work force. Tier 4 covers students. Tier 5 covers youth mobility and temporary workers, and people allowed to work in the UK for a limited period to satisfy non-economic objectives.

In order to employ foreign workers (subject to the points made above about certain EU nationals), employers must apply to join the register of sponsors. Most foreign workers will need a certificate of sponsorship from a licensed Sponsor to qualify to enter or stay in the UK, AS WELL personally meeting the points-based assessment requirements.

The notes below should all be read in light of the gradual introduction of the New Points System, which is being phased in gradually.  

The Highly Skilled Migrant Programme

This is a programme aimed specifically at enabling highly skilled people to move to the UK to look for work or self-employment opportunities. An individual does not need a specific job offer in the UK before being able to apply under this programme, nor does the individual have to demonstrate that he/she needs to create jobs or invest in the UK. Individuals may apply under the Scheme from abroad or from within the UK.

The qualification under the scheme is based on a point scoring system, in which points are awarded for:

  1. Qualifications,
  2. UK experience
  3. Age
  4. Past earnings.

In order to qualify under the Scheme an individual needs to score 75 points or more AND meet the English language requirements. Applicants have to produce all the evidence to support their application at the beginning of the process. The Borders and Immigration Authority will make a decision on the application on the basis of the evidence that is originally submitted, so an initial failure to provide all the evidence specified in support could lead to a refusal of the application.

Business Visitors

As a visitor to the UK an individual may carry out work that is directly linked to his/her employment or business abroad. The individual must then receive a salary from abroad – not from the UK for such work. Only “reasonable” travel and living expenses can be paid from sources in the UK. An individual can enter the UK as a business visitor if he/she, for example-

  1. Delivers goods from abroad, e.g. as a lorry driver,
  2. Visits as a guest speaker at a conference, in a single or occasional event,
  3. Visits as an expert to talk to UK business people about overseas requirements,
  4. Visit as a representative of a foreign machine manufacturer to install, service or repair machinery,
  5. Visit as an advisor or consultant to a UK firm (so long as they do not then become involved in project management).

There is a time limit of 6 months as the maximum duration of visit in any 12 month period. However, subject to that there is no limit on the number of visits permitted.

Long Stay Business Person

An individual may apply as a business person under immigration rules if he/she is running a business full-time in the UK as a sole trader, in a partnership, or in a UK registered company. Self-employed doctors and dentists must practice full time. Evidence will have to be provided to support the application. Amongst the requirements are the following; that the individual must establish that he/she:-

  1. Must have at least £200,000 under his/her control available in the UK with the aim of investing it in the UK business,
  2. Must have sufficient funds to support themselves (and their family) without relying on UK public funds or taking up any other employment,
  3. Must be actively involved full time in trading or providing services in the business,
  4. There is a genuine need for that individual’s investment and services in the UK.

If the individual is joining as a partner or direction in an existing business extra information will be required, including:-

  1. A written statement of the terms on which he/she will be joining, or taking over, the business,
  2. Audited accounts from the business for previous years, and
  3. Evidence that shows that the services and investment from the individual will lead to the creation of at least two new full-time jobs for people already settled in the UK.

A business plan must be produced, setting out the aims of the business, its influences, and the investment involved, projected trading details, and details of overheads.

If granted the permission will usually last for 2 years. An extension can be applied for up to another 3 years. However, if the individual proposes to change to a different business a fresh application must be submitted.

Domestic Workers

If the domestic worker’s employer is a visitor to the UK permission will usually be granted for any foreign domestic workers of that individual to stay for up to 6 months. Should the employer plan to stay in the UK for longer than that permission will be given for the foreign domestic worker to stay for up to 12 months. Once in the UK the foreign domestic worker may move to another job as a domestic worker in a private household. The worker will need to notify the Home Office on changing employer. Details of the new employer need to be provided, as well as the reasons for changing employment. After 4 years continuous employment as a domestic worker an individual can apply to stay in the UK indefinitely.

There are various distinct rules relating to foreign workers in different businesses, trades, and circumstances, so advice should be sought on their particular circumstances to ensure that the correct procedures are followed.

Company sponsorship

A new application process for companies intending to apply for a licence as a Sponsor under Tier 2 of the new points based system has started.  Tier 2 (General) covers skilled workers for those coming to the UK to work, train ,or study, and applies to skilled people with job offers who are looking to come to the UK for employment, or are self-employed, or setting up a business. There is another section of Tier 2 which covers intra-company transfers of employees within an organisation to a skilled job.

This makes a significant impact on the application for work permits. It is expected that from late 2008 any company that wishes to recruit a person on a work permit or apply for an extension to their existing permit must be licensed as a “Sponsor”. This involves an online application and submission of certain documents within 10 working days of the application date. It is expected that most applicants will then receive a visit from an officer of the Border and Immigration Agency as part of their evaluation process. The rules set out certain obligations on Sponsors. The duties placed on Sponsors include record keeping, reporting, compliance, and co-operating with the authorities, as well as particular obligations relating to each Tier.

Limits on non-EU Migrant Workers

In June 2010 the UK Government announced that it internds to put a cap on the number of non-EU migrant workers coming to the UK. The Government has stated that an interim cap is to be imposed from the 19th July 2010. The effect of this is that the number of Highly Skilled migrants (Tier1) will be capped at current levels, and the number of points required by a non-EU worker to come to the UK to carry out a highly skilled job will riase from 95 to 100 points. 

The Government has also announced that the number of certificates of sponsorship that licensed employers can issue th those that wish to come to the UK to fill skilled job vacancies will also be limited. The Government is aiming at putting in place permanent measures to limit the number of non-EU migrant workers by 1st April 2011. 

In February 2011 the Government published a "statement of intent" setting out how it proposed to oerate the points-based immigration system from 6th April 2011. A number of changes to previous plans are set out in the "statement of intention". The changes include the setting of a limit of 20,700 migrants entering the UK under Tier 2 (General). However, the exemption that applies to the filling of vacancies with salaries of £150,000 or more will remain, and will not be subject to this limit. This is so that business can continue to "attract the brightest and the best." Other changes include no longer granting employers an annual allocation for the number of migrants they can bring into the UK. In place of that employers will have to apply for a certificate of sponsorship for each individual post. A further 1,00 visas are to be made available under the Tier 1 (Exceptional Talent) route.

 

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