Foreign workers 1: immigration and employment
In the first of a series of two Guidance Notes, we examine the rights of different categories of foreign nationals to live and work in the UK.
Most foreign nationals proposing to come and work in the United Kingdom (that is, England, Wales, Scotland and Northern Ireland but not the Isle of Man or the Channel Islands), or who are already here and want to work, need one or two kinds of permission to be able to do so legally:
In this article, we examine in turn the rights to live and work in the UK of foreign nationals who do not need either kind of permission (that is, who are not "subject to immigration control"), those who need only the first kind and those who need both.
In our next Guidance Note (Foreign workers 2: unfair dismissal, discrimination and illegal working ), we will look at the right of foreign employees not to be unfairly dismissed and the rights of foreign jobseekers and workers not to be discriminated against on grounds of nationality. We will also consider the new offence of employing illegal workers. The rights of foreign nationals to come into or stay in the UK for self-employment, to provide or receive services, or to transact or set themselves up in business are outside the scope of this article.
Free movement
Foreign nationals not subject to immigration control fall into two main categories:
Others who are exempt from immigration control include: members of diplomatic missions in the UK and family members who form part of their household (but only for so long as the former remain part of their mission's diplomatic, administrative, technical or service staff); members of a visiting force serving or posted for service in the UK (such as US service personnel); and crew members of ships or planes arriving in the UK (but only until their ship or outgoing flight departs).
EEA migrant workers
An "EEA national" is a national of Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain or Sweden. Article 28(3) of the Agreement on the European Economic Area ("the EEA Agreement"), which has direct effect, gives EEA nationals who are migrant "workers" (see below) the rights: (a) to accept offers of employment in the UK; (b) to move freely within the UK for this purpose; (c) to stay in the UK for the purpose of employment in accordance with the rules governing the employment of UK nationals; and (d) to stay in the UK after having been employed here, subject to certain conditions1.
They also have the right to move freely within the UK and to stay here for the purposes of seeking employment. They must therefore be given sufficient time in which to apprise themselves, in the UK, of job offers corresponding to their vocational qualifications and to take, where appropriate, the necessary steps to be engaged. They are also entitled to receive the same assistance as the Employment Service affords British jobseekers. But they may be required to leave the UK (subject to appeal) if they have not found a job here after six months, unless they provide evidence that they are continuing to look for work and have genuine chances of being taken on (R v Immigration Appeal Tribunal ex parte Antonissen).
The above rights are fleshed out by EEC Directive No.68/360, which gives EEA migrant workers the right to come into the UK simply on production of a valid identity card or passport issued by another state party to the EEA Agreement. It also entitles them to live in the UK for longer than six months if they are able to produce either of those documents and confirmation of engagement from their employer or a certificate of employment. On production of those same documents, they may obtain a residence permit from the Home Office as proof of their right of residence2.
A residence permit must be valid throughout the UK for at least five years or, where the worker is employed for more than three but less than 12 months, the expected duration of the employment. A temporary residence permit must also be issued to a seasonal worker employed for more than three months. All residence permits must be automatically renewable and issued and renewed free of charge. Breaks in residence not exceeding six consecutive months and absence on military service do not affect a residence permit's validity.
Those rights of entry and residence are subject to "limitations justified on grounds of public policy, public security or public health", as implemented by EEC Directive No.64/221.
EEA migrant workers may also lawfully be denied access to "employment in the public service" within the meaning of article 28(4) of the EEA Agreement.
Meaning of "worker"
Essentially, a "worker" is a person who, for a given period, does work for and under the direction of another in return for remuneration (Lawrie-Blum v Land Baden-Württemberg). That work must also be "effective and genuine" and not on such a small scale as to be "purely marginal and ancillary" (Levin v Staatssecretaris van Justitie).
The level of productivity and the origin of the funds from which the remuneration is paid have no bearing on whether or not the person is a "worker" (Bettray v Staatssecretaris van Justitie). His or her motive for taking the job is also irrelevant (Levin). So are the sphere in which the work is done and the legal nature of the employment relationship (Lawrie-Blum). All the factors and circumstances characterising the arrangements between the parties must, however, be taken into account (R v Ministry of Agriculture, Fisheries and Food ex parte Agegate Ltd). These may include the duration of the work done by the person (Raulin v Minister van Onderwijs en Wetenschappen).
The term "worker" is capable of extending to part-time workers, even if their wages are below subsistence level (Levin) and whether these are supplemented from private sources or public funds (Kempf v Staatssecretaris van Justitie); temporary workers, even if they are already in paid employment in their state of origin (Ramrath v Ministre de la Justice); casual workers (Raulin); trainees (Lawrie-Blum); employees of international organisations (Echternach and Moritz v Minister van Onderwijs en Wetenschappen); and workers who are paid a "share" (ex parte Agegate Ltd).
The term "worker" also covers jobseekers (ex parte Antonissen); those who are "between jobs" (Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten); ex-workers no longer in employment because they are either temporarily incapable of work as a result of illness or accident or involuntarily unemployed (article 7(1) of EEC Directive No.68/360); and ex-workers undergoing vocational training linked to their previous employment or, if they are involuntarily unemployed, retraining in a different field (Lair v Universität Hannover).
Public service exception
"Employment in the public service" within the meaning of article 28(4) of the EEA Agreement is confined to "posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state or of other public authorities. Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the state and reciprocity of rights and duties which form the foundation of the bond of nationality" (Commission v Belgium). The test for determining whether the exception applies must be functional, and take account of the nature of the tasks and responsibilities inherent in the post concerned (Commission v France).
The ECJ has held that the exception does not cover nursing or teaching posts in the public sector. The European Commission3 considers that the exception covers "specific functions of the state and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps". It also sees the exception as covering "posts in state ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies where the duties of the post involve the exercise of state authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies".
But, according to the Commission3, only in very rare cases will the exception cover posts in public bodies responsible for administering "commercial services" (such as the supply of water, electricity and gas, post and telecommunications, television and radio, public transport, airlines and shipping lines), while the exception does not cover similar bodies in the private sector (for example, in the UK, the privatised utilities).
In re Colgan and others, the Northern Ireland High Court held that the post of management trainee in the Northern Ireland Civil Service constituted "employment in the public service" within the meaning of article 28(4) of the EEA Agreement, but that the decision to treat Irish citizens as ineligible for that post discriminated against them, and other EEA nationals, on the ground of nationality contrary to Community law. They would have been eligible for any post in the Home Civil Service, and Commonwealth citizens were eligible for any post in both the Northern Ireland and Home Civil Services.
As of 1 June 1996, however, posts in both the Home and Northern Ireland Civil Services which constitute "employment in the public service" are reserved for "UK nationals" (that is, British citizens, British subjects with the right of abode and Gibraltarians) and are not open to Irish or Commonwealth citizens4. EEA nationals remain eligible only for those posts which do not constitute such employment.
Family members
EEC Regulation No.1612/ 68 gives the following, irrespective of their nationality, the right to "install themselves" with an EEA migrant worker employed in the UK who has available for them housing considered as "normal" for British workers in the region where he or she is employed: his or her spouse; their children, grandchildren and other descendants who are under 21 or dependants; and their dependent parents, grandparents and other ancestors.
EEC Directive No.68/360 gives them the right to come into the UK on production of a valid identity card issued by another state party to the EEA Agreement or a valid passport and, if they are non-EEA nationals, an entry clearance known as an "EEA family permit". They also have the right to obtain a residence permit (which has the same validity as the worker's), as proof of their right of residence in the UK, on production of the document with which they came into the country and either an EEA family permit or documentary proof of their relationship to the worker and, if appropriate, a document certifying that they are dependent on the worker or live under his or her roof.
A dependent member of a worker's family is one who is in fact supported by the worker, regardless of the reasons for recourse to the worker's support (Centre Public d'Aide Sociale, Courcelles v Lebon). The worker and his or her spouse do not have to live together permanently, and may even be separated and intend to divorce, so long as they both stay in the UK (Diatta v Land Berlin). But the worker's spouse loses the right of residence if they divorce, or if they separate and the EEA national returns home for good.
All family members' rights of entry and residence are, like the worker's, "subject to limitations justified on grounds of public policy, public security or public health". Those rights are also conferred on the spouse of a British citizen who has gone with that spouse to work in another state party to the EEA Agreement and returns to the UK to work here (R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department), and on the unmarried cohabiting partner of the opposite sex of an EEA national with indefinite leave to remain (Netherlands v Reed), regardless of their nationality.
Where an EEA national is employed or self-employed in the UK, his or her spouse and their children who are under 21 or dependent on him or her have the right, even if they are non-EEA nationals, to take up any employment other than in "the public service" throughout the UK.
Right of abode
Commonwealth citizens with the right of abode in the UK are, like British citizens, "free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with [the Immigration Act 1971] to enable their right to be established or as may be otherwise lawfully imposed on any person" (s.1(1) of that Act). They are also free to take any employment they choose.
British citizenship, and hence the right of abode, may be acquired by birth or adoption, descent, registration or naturalisation (see, generally, the British Nationality Act 1981 and the British Nationality (Hong Kong) Act 1990).
Immigration control
Foreign nationals in the following categories are subject to immigration control but do not need a work permit to be able to work in the UK legally.
Gibraltarians
British Dependent Territories citizens who derive their citizenship from a connection with Gibraltar have a right to register as British citizens, which in turn entitles them to the right of abode in the UK (see above). Until they exercise that right, they are subject to immigration control but free to take any employment they choose.
UK ancestry
Commonwealth citizens aged 17 or over who can prove that one of their grandparents was born in the UK, the Channel Islands or the Isle of Man, and who intend to take or seek employment, may be given leave to enter or remain for up to four years and may take any employment they choose.
Working holidaymakers
Young Commonwealth citizens, aged 17-27 inclusive, may be given leave to enter for up to two years (which may not be extended) as working holidaymakers. They may only take employment incidental to a holiday, and may not engage in business, provide services as a professional sportsperson or entertainer, or pursue a career in the UK.
According to the Home Office's guide for employers5 concerning s.8 of the Asylum and Immigration Act 1996 (see our next Guidance Note ): "As a general guide, work which is incidental to a holiday is regarded as being part time or casual work. Full-time work, even on a casual basis, would normally be seen as appropriate for no more than half a working holidaymaker's stay. As a rule of thumb full-time work is taken to mean no more than 25 hours a week."
"Au pairs"
Young single people with no dependants, aged 17-27 inclusive, who are nationals of Andorra, Bosnia-Herzegovina, Croatia, Cyprus, the Czech Republic, the Faeroes, Greenland, Hungary, Macedonia, Malta, Monaco, San Marino, the Slovak Republic, Slovenia, Switzerland or Turkey may be given leave to enter for up to two years (which may not be extended) to take up an "au pair" placement. This is an arrangement whereby they come to the UK to learn English, live for a time as a member of an English-speaking family with appropriate opportunities for study, and help in the home for up to five hours a day in return for a reasonable allowance and two days off a week. They may move to another host family, but they may not work outside the home.
Students
Non-EEA nationals who have been accepted for a full-time course of study at a university or college of further education, a private secretarial college, language school or "crammer", or an independent fee-paying school may be given leave to enter or remain for an appropriate period depending on the length of their course and their means (which may be extended if, as a result, they would not spend more than four years on courses lasting less than two years, or longer courses broken off before completion).
They may only take part-time or vacation work with the permission of the Employment Service or, in Northern Ireland, the Work Permits Branch of the Training and Employment Agency ("the TEA")6. Permission will be given only in respect of a specific job with a particular employer, and only if: (a) the employment will not interfere with the student's course; (b) no suitable resident applicant is available; and (c) the pay and conditions offered are not less favourable than those obtaining locally for similar work.
Exchange students
American full-time college students holding a BUNAC "blue card" may be given leave to enter for up to six months, and may also only take employment with the approval of the Employment Service or the TEA.
Student nurses and midwives
Non-EEA nationals who have been accepted for training as student nurses or midwives leading to a registered nursing qualification, and non-EEA nurses or midwives who have been accepted on an adaptation course leading to registration as a nurse with the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, may be given leave to enter or remain for the duration of their training course (which may be extended if, as a result, they would not spend more than four years in obtaining the relevant qualification). They may only take employment in connection with their training.
Postgraduate doctors and dentists
Non-EEA graduates from UK medical schools may be given leave to enter for up to 12 months to undertake pre-registration house officer employment. Non-EEA doctors or dentists eligible for full or limited registration with the General Medical Council or General Dental Council may be given leave to enter or remain for up to 12 months (which may be extended by up to a further three years) to undertake postgraduate training in a hospital.
Exchange teachers and language assistants
Non-EEA nationals coming to an educational establishment in the UK as teachers or language assistants under an approved exchange scheme may be given leave to enter for up to 12 months (which may be extended by up to one more year if they are still required for the employment in question) with a condition prohibiting them from taking other employment.
Permit-free employment
Leave to enter for up to 12 months (which may be extended by up to a further three years if they are still required for the employment in question), with a condition prohibiting them from taking other employment, may be given to non-EEA nationals who are:
Diplomats' servants
Non-EEA nationals aged 18 or over employed as private servants in the households of members of staff of diplomatic or consular missions, or family members forming part of those households, may be given leave to enter for up to 12 months (which may be extended by up to one more year if they are still required for the employment in question), with a condition prohibiting them from taking other employment.
Incoming domestic workers
Non-EEA nationals aged 18 or over who have been employed overseas as domestic workers for at least 12 months by foreign employers who are just visiting the UK, or for at least two years by foreign employers who are coming here for any other purpose, may be given leave to enter for up to 12 months but no longer than their employer's (which may be extended in line with their employer's so long as satisfactory arrangements continue to apply in their case), with a condition prohibiting them from taking other employment.
Crew members
Non-EEA nationals coming to the UK to join a ship, aircraft, hovercraft, hydrofoil or international train service as a member of its crew may be given leave to enter requiring them to leave the UK in the ship etc specified or indicated by the notice giving leave. They will be refused leave to remain unless an extension of stay is necessary to enable them to take up their post.
Seasonal farmworkers
Non-EEA nationals who hold a valid Home Office work card issued by the operator of an approved scheme may be given leave to enter for up to three months or until 30 November of the year in question (whichever is the shorter period) to work at an agricultural camp in the UK. Unless they are returning for another season at the specific invitation of a farmer, they must be students in full-time education aged 18-25 inclusive. They may stay for up to a further three months or until 30 November of the year in question (whichever is the shorter period) if there is further farmwork available under the approved scheme.
Spouses and children
The wives or husbands and unmarried dependent children under 18 of most of the above7, and those of full work permit holders, TWES permit holders (see below) and certain other non-EEA nationals with limited leave to enter or remain (business people, self-employed persons, investors, writers, composers or artists) may be given leave to enter or remain for a period not in excess of that given to their husbands or wives or to their fathers or mothers.
They are free to take any employment they choose unless they are students' spouses or dependent children under 18 given leave to enter or remain for less than 12 months, in which case employment will be prohibited.
Asylum seekers
Asylum seekers granted temporary admission or limited leave to remain pending the determination of their applications are normally given permission to work for any employer after their applications have been outstanding for at least six months, and permission to work for a particular employer may sometimes be given earlier. This is indicated on the back of the standard acknowledgement letter issued to them by the Home Office.
Asylum seekers whose applications are successful (that is, those who are recognised as refugees) are given leave to remain for 12 months initially and for three years on the next renewal, without any condition restricting their freedom to take employment. Asylum seekers who are not recognised as refugees may be given exceptional leave to remain. They, too, are free to take any employment they choose.
Appellants
Non-EEA nationals who have exercised a right of appeal under Part II of the Immigration Act 1971 (against, for example, a refusal to vary or extend a limited leave to enter or remain) are free to work in accordance with the conditions attached to their original leave pending the outcome of their appeal.
Settlement
Foreign nationals are "settled" in the UK if they are ordinarily resident here (that is, if they have voluntarily adopted this country as their home for settled purposes, such as employment, as part of the regular order of their life for the time being, whether of long or short duration) without being subject to any restriction on their length of stay (that is, with indefinite leave to remain). They are free to take any employment they choose.
EEA migrant workers issued with a residence permit valid for five years, Commonwealth citizens with UK ancestry, foreign nationals in permit-free employment, full work permit holders and refugees may all be given indefinite leave to remain once they have spent a continuous period of four years in the UK in these capacities (not counting absences totalling three months in any one year or, exceptionally, longer absences) and, in the cases of foreign nationals in permit-free employment and full work permit holders, if they are still required for the employment in question. Their spouses, unmarried dependent children under 18 and certain other relatives qualify for settlement at the same time.
Posted workers
Non-EEA nationals who are members of the workforce of an overseas firm or company providing services in the UK, and who are temporarily posted to the UK to carry out work as part of the provision of those services, should be given leave to enter (and, if necessary, an extension of stay) for as long as is necessary to carry out the work, with a condition prohibiting them from taking other employment, if: (a) their employer is established in another state which is party to the EEA Agreement and legally and habitually employs non-EEA nationals; (b) they are legally employed and resident in that state; and (c) they intend to return to their country of origin or residence after completing their work (Rush Portuguesa Lda v Office National d'Immigration; Vander Elst v Office des Migrations Internationales). According to the Home Office, they must also have been legally employed by their employer for at least a year.
Turkish workers
Turkish nationals with valid leave to enter or remain who have worked in the UK legally for 12 months, whether as work permit holders or otherwise (for example, as spouses of foreign nationals settled in the UK or as refugees), are entitled to the renewal of their "permit to work" for the same employer as they are then working for, if a job is available. They also have the right to enjoy free access to any paid employment of their choice after four years' legal employment. The Home Office must extend their original leave to enter or remain accordingly (Sevince v Staatssecretaris van Justitie; Kus v Landeshauptstadt Wiesbaden).
"Legal employment" presupposes a stable and secure situation as a member of the UK labour force, and does not cover the situation of a Turkish worker who has been legally able to continue in employment pending the outcome of his or her appeal under Part II of the Immigration Act 1971. The above rights are also subject to "limitations justified on grounds of public policy, public security or public health" (see above).
Workers from the Maghreb
The treatment accorded to Algerian, Moroccan and Tunisian "workers" in the UK must be free from any discrimination based on nationality, as regards "working conditions" or remuneration, in relation to UK nationals (Office National de l'Emploi v Kziber). It may follow that Algerian, Moroccan or Tunisian nationals who are working legally in the UK have the same rights as EEA migrant workers employed here (R v Director of Labour and Social Security ex parte Amimi Mohamed). Alternatively, they may simply be entitled to leave to remain for the purpose of employment without having to obtain a full work permit or an extension of their existing one. Further case law is needed on the meaning of "working conditions".
Work permits
Other foreign nationals subject to immigration control coming to the UK to seek or take employment may be given leave to enter for up to four years, with a condition restricting them to employment approved by the Department for Education and Employment ("the DfEE") or, in Northern Ireland, the TEA8, if they hold a valid work permit issued under the Work Permit Scheme (a "full work permit"). They may be granted an extension of stay for the period of approved employment recommended by the DfEE, if they have its written approval for the continuation of their employment.
Other foreign nationals subject to immigration control coming to the UK for training or work experience, and non-EEA students, may be given leave to enter or remain to undergo training for up to three years or work experience for up to 12 months, with a condition allowing them to take or change employment only with the DfEE's permission, if they hold a valid work permit issued under the Training and Work Experience Scheme (a "TWES permit") or a letter of permission from the Home Office. They may be granted an extension of stay for up to a further three years' training, or 12 months' work experience (where this was asked for and agreed in advance), if they have the DfEE's written approval for this.
Specialist work permits may also be issued to top class entertainers and sportspersons from abroad. Applications for these must be made on form WP3 and, in the case of professional footballers, form WP49.
The Work Permit Scheme, of which the TWES is a part, is liable to change at any time. Care should be taken, therefore, to ensure that applications for full work permits and TWES permits are made on the basis of the current arrangements, which are as follows.
Full work permits
Full work permits are issued to named foreign nationals for specific posts with particular employers. The posts must require a recognised degree level or equivalent professional qualification(s), senior executive or administrative skills, or highly qualified technicians with specialised or rare skills. Full work permits are not therefore issued for jobs at manual, craft, clerical, secretarial or similar levels, or for resident domestic work (such as childminders or housekeepers).
The pay and conditions offered are expected to be equal to those offered to British employees for doing similar work. Applicants are also expected to have an adequate command of English and substantial relevant experience, normally two years at the level of the post on offer. Experience gained illegally or whilst in the UK with limited leave to enter or remain under a Home Office permit-free category (such as working holidaymaker) will not normally be taken into account.
An application for a full work permit must be made by the employer (which may be a trading company or a professional partnership but not an employment agency or "other similar third party") on form WP110.
The application should be made at least eight weeks, but no more than six months, before the employer wants to bring the foreign national into the country. (If he or she is already in the UK, the application should be made no more than three months before his or her current leave to enter or remain expires.)
There is a two-tier system for processing full work permit applications. A "Tier 1 application" is an application which falls into one of the following four categories:
Labour market changes mean that such "shortage occupations" will vary over time, sometimes rapidly. Posts which require a specific combination of skills, knowledge and experience which are rare, but where the occupation itself is not in short supply (such as a systems analyst with knowledge and experience of a specific computer system or language), do not qualify under this category11.
A "Tier 2 application" is any other application, including ones where the foreign national has held a TWES permit in the past two years or a full work permit for a career development post in the last six months, is already in the UK, and/or is a keyworker.
"Keyworkers" are foreign nationals having technical or specialised skills and expertise essential to the day-to-day operation of their employing firm or company. They need not hold high academic or professional qualifications. But they must possess specialised knowledge or experience not readily available in the EEA which makes them uniquely qualified to do the job, and the employer must normally show that the jobs of others depend on their recruitment.
Foreign nationals who have extensive knowledge of languages and/or cultures which is not readily available in the EEA, and whose jobs involve spending at least 60% of their time using that knowledge, may qualify as keyworkers. Keyworkers may also include highly skilled and experienced workers for senior posts in the hotel and catering sector, in respect of whom a supplement to form WP1 must be completed12. A full work permit is normally issued to a keyworker on condition that the employer recruits and trains a resident or EEA worker to replace the keyworker when his or her permit expires.
In the case of a Tier 1 application, the employer need only complete Part 1 of form WP1 and need not have advertised the post. Unless it has made a full work permit application in the past four years, it must send the DfEE a copy of its latest audited accounts, clearly showing the accountant's name, and a copy of its latest annual report or copies of any publicity or marketing material. If neither of these documents is available, the employer should send evidence of tenure of its business premises (such as a lease or similar document of title), details of the staff it employs in the UK, a copy of its certificate of incorporation, or any other documentation which shows it is a trading company. For professional partnerships (such as solicitors' firms), a copy of one of the partners' registration with the appropriate professional body (such as the Law Society) will suffice.
In the case of a Tier 2 application, the employer must complete Parts 1 and 2 of form WP1. It must also have advertised the post, and must give reasons why it is unable to train or transfer an existing employee to do the job in question and why it needs to employ the foreign national. In addition to the documentation required to support a Tier 1 application, it must also send the DfEE:
Copies of advertisements should be of the whole page on which they appeared, showing the name and date of the publication, and they should be clearly marked. The advertisements themselves must identify a specific post and the salary offered. They must also have been placed by the employer (or a recruitment agency), within the last six months prior to making the application, in a national newspaper or trade /professional journal (or in both in the case of a keyworker post), which is appropriate to the level and type of post on offer and which is available throughout the EEA. The employer must then have allowed four weeks for replies to the advertisements.
Issue and validity
Where an application for a full work permit is granted, the permit will be issued for a specified period starting on the date the foreign national arrives in the UK. The maximum period is four years or, in the case of career development posts and keyworkers, three years. Once issued, the permit is sent to the employer who is responsible for forwarding it to the foreign national. He or she must travel to the UK within six months of the date the permit was issued, otherwise it will cease to be valid. Making amendments to the permit will also invalidate it.
A full work permit may not be issued to a foreign national who was already in the UK when the application was made. Instead, the DfEE will make a recommendation to the Home Office. The latter will consider the immigration aspects of the case and then write to the employer and the foreign national with its decision. Unless the Home Office has approved the application, and it has sent the employer a letter of permission, the foreign national may not start work.
Extension and changes
An application for a full work permit extension must be made by the employer, before the original permit expires (but no earlier than three months before), on form WP513. The employer will need to show why and for how much longer it needs to employ the foreign national. It must also give details and supporting evidence to show what action it has taken to recruit or train a UK or EEA worker to fill the post, and the results of that action. It will be expected to advertise the post in cases where this was required when the permit was issued, and where the occupation was regarded as a "shortage occupation" at that time but is no longer so.
Changes of employer will only be considered for the same kind of work for which the permit was originally issued, and the new employer must get the DfEE's approval by applying on form WP1 before the foreign national starts work. The existing employer also needs the DfEE's permission if it wants the foreign national to change jobs. It should again apply on form WP1, supplying the information as before (except for references and copies of qualifications already supplied). It need not re-apply if the foreign national will be doing the same job at a different location, but it must inform the DfEE of this in writing.
Neither the employer nor the foreign national need the DfEE's permission to end the employment, but the employer should inform the Home Office if this happens.
Refusals
There is no right of appeal against a decision to refuse to grant or extend a full work permit, but the employer may ask the DfEE to review the decision. It may also apply for judicial review of the decision. Where the foreign national was already in the UK when the application was made, he or she may have a right of appeal to an adjudicator against the Home Office's refusal to vary his or her existing leave. The same goes for a refusal to grant or extend a TWES permit.
TWES permits
A TWES permit may be issued to a named foreign national coming to the UK for specified training towards certain qualifications or to undertake short periods of work experience, courtesy of a particular employer, where a genuine need exists and on the clear understanding that the foreign national will return abroad on completion of the training or work experience. Once he or she has been working overseas, normally for a minimum of two years, he or she may be considered for a further period of training or work experience. The foreign national must also have an adequate command of English to be able to benefit from the training or work experience offered, to which different rules apply.
Training
To qualify for the issue of a TWES training permit, the foreign national must be aged 18 or over. He or she must also have qualifications equivalent to UK degree level or National/Scottish Vocational Qualification (NVQ/SVQ) level 4 or higher, and the training offered by the employer should: lead to a recognised professional or specialist qualification at post-graduate level; be related to the foreign national's qualifications; be for a minimum of 30 hours a week (excluding any associated study time); and be completed in the shortest possible time (a maximum of two actual or possible attempts at any one exam will normally be allowed).
In addition, the foreign national must be engaged on a salary and other conditions of employment which reflect those normally applicable to the profession or sector concerned, and which should be no less favourable than those of a British trainee. Finally, where the training leads to a professional qualification, the employer should be registered with or approved by the appropriate professional body.
In the case of qualifications which take a number of years to obtain, approval will normally be given for an initial period, which will then be extended provided that the foreign national is making satisfactory progress. Approval will not normally be given, however, for supplementary qualifications.
Work experience
To qualify for the issue of a TWES work experience permit, the foreign national should be between the ages of 18 and 35 and at or near the start of his or her career. He or she must also have previous relevant experience, or the appropriate academic or vocational qualifications to enable him or her to benefit from the work experience offered. That must be for 12 months or less initially and, if asked for and agreed in advance, may be up to two years in total. It should also be at managerial level or a level equivalent to NVQ/SVQ level 4 or above, and for a minimum of 30 hours a week (excluding any associated study time).
In addition, the foreign national should be employed by the employer in a supernumerary capacity, and should not be filling a vacant post, unless he or she is coming to the UK on an intra-company transfer (see below). Finally, any payment made to him or her should be only a modest personal spending allowance, unless he or she: is coming to the UK under an exchange agreement where rates of pay are reciprocal; or is to be paid by an employer or organisation based overseas; or is coming to the UK on an intra-company transfer (that is, is employed by the employer abroad, other than in a senior position, and is coming to undertake work experience in the employer's UK office). In any of those three cases, the foreign national may be paid a full wage or salary.
Application
An application for a TWES permit must be made by the employer on form WP214. The timing of the application, and the issue and validity of the permit, are the same as for a full work permit.
Extension and changes
An application for a TWES permit extension must be made by the employer, before the expiry of the original permit, on form WP2x15. The employer must say how much longer the foreign national needs to complete the training or work experience, and explain why this additional period is necessary. In the case of a training extension, it must also give the dates and results of exams already taken and the expected dates of future exams. In the case of a work experience extension, the employer must also give details of the work experience programme for the additional period and, if that period is more than 12 months, full reasons for wanting such an extension in a covering letter.
Changes of employer during periods of training or work experience will only be considered if the programme offered by the new employer is the same as that which the existing employer has been offering. The latter should inform the DfEE when the foreign national leaves, the new employer should complete form WP2 and send this to the DfEE, and the foreign national should not start work with the new employer until it receives the DfEE's permission.
Neither the employer nor the foreign national needs the DfEE's permission to end the training or work experience, but the employer is advised to inform both the DfEE and the Home Office if this happens.
Future developments
The European Commission has proposed Directives on the elimination of controls on persons crossing internal frontiers16, and on the right of third-country nationals to travel in the Community17. The latter would not, if adopted, affect existing Community or domestic law on third-country nationals' access to employment. Moreover, the Council of the European Union has resolved18 that the present restrictive measures in the UK and the other member states as regards the admission of third-country nationals for employment should be continued and, where necessary, reinforced.
We gratefully acknowledge the input of Paul Hilditch, the immigration law specialist at Clifford Chance in London.
References
1 See EEC Regulation No.1251/70.
2 This is the case unless their employment is not expected to last for more than three months and they have a statement by their employer to that effect, or they are seasonal workers whose contracts of employment have been approved by the Department for Education and Employment.
3 See OJ C72/2, 18.3.88.
4 See Hansard (HC), 1.3.96, col. 771.
5 A copy of the guide should have been received by all employers, and is also available on the Internet at the following address: www.open.gov.uk/home_off/ind.htm
6 The application must be made on form OSS1 (or, in Northern Ireland, form WP1), which may be obtained from job centres (or the TEA).
7 Other than those of working holidaymakers (unless, being spouses, they qualify as such in their own right and intend to take a working holiday with their husband or wife), "au pairs", exchange students, incoming domestic workers and seasonal farmworkers.
8 Subsequent references in the text to the DfEE should be read as including the TEA.
9 Obtainable, together with the explanatory form WP3 (notes), by telephoning 01937 840224.
10 Obtainable by telephoning 01937 840224. The completed form must be sent to the Department for Education and Employment, Overseas Labour Service, W5, Moorfoot, Sheffield S1 4PQ (or, in Northern Ireland, to the Training and Employment Agency, Work Permits Branch, Clarendon House, 9-21 Adelaide Street, Belfast BT2 8DJ).
11 If the employer thinks its application might qualify under this category, it should telephone the DfEE on 0114 2594203 for the latest information.
12 Obtainable, together with the special guidance notes HOT1, by telephoning 01937 840224.
13 Obtainable by telephoning 01937 840224. The completed form must be sent to the same address as for the application (see note 10 above ).
14 Obtainable by telephoning 0990 210224. The completed form, together with the same supporting documentation as is required for a Tier 1 full work permit application), must be sent to the same address as for full work permit applications (see note 10 above ).
15 Obtainable by telephoning 0990 210224. The completed form must be sent to the same address as for the application (see note 10 above ).
16 OJ C289/16, 31.10.95.
17 OJ C306/5, 17.11.95.
18 OJ C274/3, 19.9.96.
Foreign nationals' rights to live and work in the UK: main points to note
Leave to enter or remain
Leave to enter is given or refused by an Immigration Officer, in accordance with the relevant paragraphs of the Immigration Rules19, or the relevant concession outside those Rules, to non-EEA nationals subject to immigration control seeking admission to the UK. Leave to remain is given or refused by the Home Office, as a matter of discretion, to those who are already in the UK without permission. Either type of leave may be given for a limited or an indefinite period, and a limited leave may be given subject to a condition restricting the non-EEA national's freedom to take employment in the UK and/or a condition requiring him or her to register with the police (see below). The giving of leave is indicated by a stamp in the passport or travel document.
Indefinite leave cannot be varied or curtailed. But a limited leave may be varied by restricting, enlarging or removing the limit on its duration or by adding, varying or revoking the conditions attached to it. A non-EEA national with limited leave to enter or remain who wants to extend his or her stay in the UK, or to vary conditions attached to his or her current leave, should apply to the Home Office or, if he or she is a work permit holder, to the Department for Education and Employment (or, in Northern Ireland, the Training and Employment Agency) before that leave expires. Only then will it automatically be extended until after the application is decided. A later application also entails the loss of the non-EEA national's statutory right of appeal against a variation of leave or a refusal to vary it, and a risk of his or her being prosecuted for overstaying.
Non-EEA nationals will be granted or refused an extension of stay in the same category as they were admitted to the UK in accordance with the relevant paragraphs of the Immigration Rules or concession outside those Rules. But, with very few exceptions, the Rules prevent switching to a different category. For example, visitors who did not need a visa to enter the UK may become students or student nurses or midwives; students may become student nurses or midwives and vice versa; students may also become TWES permit holders; and working holidaymakers and others may be able to stay on as Commonwealth citizens with UK ancestry. A variation of leave is effected by a stamp in the passport or travel document, or sometimes by a letter.
19 HC 395, available from the Stationery Office. The Rules are liable to change at any time.
Entry clearances
Some non-EEA nationals subject to immigration control will be refused leave to enter if they do not produce on arrival a current UK entry clearance issued for the purpose for which they seek admission to the UK. This is either a visa (if they need a visa for the UK) or an entry certificate (if they do not), which is endorsed on their passport or travel document, and it is normally valid for presentation at a UK port of entry within six months of its issue date.
An application for an entry clearance must be made to the British Embassy, Consulate or High Commission in the country where the non-EEA national is living, before he or she travels to the UK, and it is not made until any requisite fee has been paid (while EEA family permits are issued free of charge). It will be considered in accordance with the relevant paragraphs of the Immigration Rules (or concession outside those Rules) governing the granting or refusal of leave to enter. The issue of an entry clearance does not lead to automatic admission on arrival in the UK. The foreign national may still be refused leave to enter if, for example, a change of circumstances since the entry clearance was issued has removed the basis of his or her claim to admission.
Non-EEA nationals who need an entry clearance are family members of EEA nationals; Commonwealth citizens with UK ancestry; exchange teachers and language assistants; foreign nationals in permit-free employment; diplomats' servants; crew members; their spouses and unmarried dependent children under 18; working holidaymakers and their spouses; incoming domestic workers; and the spouses and unmarried dependent children under 18 of full work permit holders; TWES permit holders; business people; self-employed persons; investors; writers; composers or artists. Others who are "visa nationals" (a list of whom appears in the appendix to the Immigration Rules) need a visa to enter the UK.
Registration with the police
A condition requiring registration with the police should normally be imposed on any non-EEA national aged 16 or over who is given limited leave to enter or remain: (i) for employment for longer than three months (unless he or she has been admitted as a minister of religion or a diplomat's servant); (ii) for longer than six months as an "au pair", a student or a family member of an EEA national; (iii) as the spouse or child of a person required to register with the police; or (iv) in any other case where this is considered necessary to ensure that he or she complies with the terms of the leave.
Registration entails going to the central police station nearest to where the non-EEA national lives or, if he or she lives in the Metropolitan Police area, the Aliens Registration Office at 10 Lamb's Conduit Street, London WC1, within seven days of arriving in the UK or being given limited leave to remain. They must produce their passport or some other document satisfactorily establishing their identity or nationality, and two recent passport-size photographs. They must also give their full name, address in the UK, marital status, profession or occupation, and the name and address of their employer (if any) and workplace (if different from the employer's).
On payment of a registration fee (currently £34), the non-EEA national will be issued with a certificate of registration or "green card". Any change of address must be notified to the police within seven days, and any change of name, marital status, nationality, profession or occupation, employer or workplace must be notified within eight days. The non-EEA national must produce the certificate in order that any necessary amendment may be made to it, and also if he or she is required to do so by a police or immigration officer.
CASE LIST
Bettray v Staatssecretaris van Justitie [1989] ECR 1621
Centre Public d'Aide Sociale, Courcelles v Lebon [1987] ECR 2811
Colgan and others, re [1997] 1 CMLR 53
Commission v Belgium [1980] ECR 3881
Commission v France [1986] ECR 1725
Diatta v Land Berlin [1985] ECR 567
Echternach and Moritz v Minister van Onderwijs en Wetenschappen [1989] ECR 723
Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177
Kempf v Staatssecretaris van Justitie [1986] ECR 1741
Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781
Lair v Universität Hannover [1988] ECR 3161
Lawrie-Blum v Land Baden-Württemberg [1987] ICR 483
Levin v Staatssecretaris van Justitie [1982] ECR 1035
Netherlands v Reed [1986] ECR 1283
Office National de l'Emploi v Kziber [1991] ECR I-199
R v Director of Labour and Social Security ex parte Amimi Mohamed [1992] 3 CMLR 481
R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I-745
R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1992] ECR I-4265
R v Ministry of Agriculture, Fisheries and Food ex parte Agegate Ltd [1989] ECR 4459
Ramrath v Ministre de la Justice [1992] ECR I-3351
Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027
Rush Portuguesa Lda v Office National d'Immigration [1990] ECR I-1417
Sevince v Staatssecretaris van Justitie [1990] ECR I-3461
Vander Elst v Office des Migrations Internationales [1994] ECR I-3803
