Foreign workers: frequently asked questions

Mark Barnett of steeles (law) llp concludes this month's series of articles on foreign workers by answering some frequently asked questions.

We are currently recruiting for various positions. One applicant is a working holiday maker - what restrictions should we be aware of?

Under the UK Working Holiday Makers Scheme, a person aged between 17 and 30 who has obtained entry clearance as a working holiday maker from the British diplomatic mission in his or her country of residence (generally one of the Commonwealth countries) will be granted leave to remain in the UK for up to two years. Individuals can work for up to 12 months during the two-year period, but the work must be incidental to their holiday and they are not entitled to establish themselves in business.

It is important for an employer to monitor the amount of time that a working holiday maker has spent working in the UK to ensure that the individual has not already exceeded this limit and that he or she does not exceed this limit while working for it. Otherwise, the employer risks criminal liability and the individual may be detained or even removed from the UK.

How can a working holiday maker apply to extend his or her stay in the UK or to return to the UK on a working visa?

If an employee who is a working holiday maker wishes to stay in the UK and the employer wants to continue to employ him or her, the employee may be able to switch immigration status while in the UK or may have to return to his or her country of residence to make an entry clearance application under a different category. For example, provided that they have made a successful application for highly skilled migrant status, working holiday makers are currently entitled to switch immigration status to that of highly skilled migrant while remaining in the UK. A work permit application, which is made by the employer, can be initiated while the employee is still in the UK, although, if approved, the employee will normally need to return to his or her country of residence to make an entry clearance application as a work permit holder.

Following the accession of Bulgaria and Romania to the EU in January 2007, what rights do nationals of these countries now have to work in the UK?

Bulgarian and Romanian nationals have a right of three months' residence in any EU member state on an unrestricted basis. After three months, they can remain legally resident in the UK for as long as they like provided that they are exercising a treaty right as an economically self-sufficient person, as a self-employed person or as a student. However, they will not be able to be employed in the UK without having specific permission to do so.

If a Bulgarian or Romanian national wishes to be employed in the UK, he or she will need to obtain authorisation to work in the form of an accession worker card. For specific categories of employment (such as domestic workers in a private household, sole representatives of overseas businesses and overseas qualified nurses), the individual can apply to the Home Office for an accession worker card without the need for the employer to apply for a work permit. If the employment does not fall into one of these categories, however, the UK employer must first apply for approval of the employment under the work permit arrangements.

A Bulgarian or Romanian national may be exempt from the requirement to obtain an accession worker card if he or she is highly skilled. To qualify as highly skilled, an individual must either score sufficient points under the points-based system established for the purpose of the Highly Skilled Migrant Programme or meet the criteria for the approval of leave to remain under the existing Science and Engineering Graduate Scheme or the Scottish Graduate Scheme. Such individuals will be issued with a registration certificate confirming that they are not subject to any employment restrictions.

Bulgarian or Romanian students in the UK can work for up to 20 hours a week without obtaining an accession worker card. However, they must first obtain a registration certificate confirming that they are exercising a treaty right as a student.

I have been asked to check the visa status of job applicants. How do I avoid discrimination during the process?

When investigating the immigration status of proposed employees, it is important not to undertake any conduct that could be construed as discrimination. It is therefore good practice to obtain the specified documentation from all prospective employees, regardless of their nationality. In addition, you should check and make a copy of the documents provided and retain them on personnel files or a separate file containing the immigration particulars of all employees to avoid criminal liability and, when the relevant provisions of the Immigration, Asylum and Nationality Act 2006 come into force, a civil penalty.

One of my employees has been a work permit holder in the UK for almost five years and wishes to apply for indefinite leave to remain. What is the procedure?

A work permit holder may apply for indefinite leave to remain after he or she has spent at least four years and 11 months as a work permit holder. However, any periods of unemployment or periods when the individual was working without a valid work permit (or leave to remain) will not count toward the qualifying period. If the application for indefinite leave to remain is successful, all immigration restrictions in the UK will be removed and the individual will be able to work for any company in the UK or to set up a business.

Individuals can apply for indefinite leave to remain by post or, in some cases, in person at one of the Home Office's Public Enquiry Offices (having made an appointment in advance) or through an agent that will present the application on the employee's behalf. For applications made by post, there is a fee of £335; for applications made in person the fee is £500.

It should be noted that, from 2 April 2007 all individuals who plan to apply for indefinite leave to remain in the UK will be required to pass the 'Life in the UK' test before submitting an application.

Next week's article will be the first in a series on flexible working and will look at who is eligible to request it.

Mark Barnett is a specialist UK immigration solicitor at steeles (law) llp (immigration@steeleslaw.co.uk).

Further information on steeles can be accessed at www.steeleslaw.co.uk