Foreign workers: schemes and programmes

Mark Barnett of steeles (law) llp begins a series of articles on foreign nationals with a look at the circumstances in which they may work in the UK.

Work permits

Work permits are one of the most common UK immigration categories for non-European nationals employed in the UK. However, as work permit applications are made by the employer, they are not considered to be immigration applications. The practical effect of this distinction is that if a work permit application is refused it will not impact on the individual's immigration status unlike, for example, an application refusal for further leave to remain or entry clearance.

To obtain a work permit, both the individual and the job need to satisfy certain criteria. For example, the job must require one of a range of specific qualifications or three years' full-time relevant work experience at a supervisory level; the individual, in turn, must have the relevant qualification or the three years' full-time relevant work experience at a supervisory level.

In addition, the employer will generally need to show that it has carried out a recruitment search by advertising the position. There are strict criteria regarding the contents of the advertisement and where it should be placed. The salary offered for the position needs to be at the industry's going rate for that type of position; otherwise, the application is likely to be refused.

The work permit process comprises two stages. The first stage is the application by the employer for the work permit. The second stage - if the application is approved - is an application by the individual for either further leave to remain in the UK or entry clearance from the British diplomatic mission in his or her country. There are separate application forms and fees for each type of application.

Even if the individual is in the UK once the work permit is approved, he or she may not be able to switch immigration status to that of work permit holder in the UK unless he or she falls into a specific category. If not, the individual will need to return to his or her country of residence and make an entry clearance application at the local British diplomatic mission.

Highly Skilled Migrant Programme

To qualify for the Highly Skilled Migrant Programme (HSMP), an applicant needs to score at least 75 points, based on four areas:

  • his or her age (27 years old or under = 20 points, 28 or 29 = 10 points, 30 or 31 = 5 points; over 31 = 0);

  • his or her qualifications (as a result of recent changes, individuals who are not graduates will not qualify however much work experience they may have);

  • his or her earnings in a specific 12-month period (the amount of earnings and the country where those earnings were derived affect the number of points); and

  • any UK experience or qualifications.

    • In addition, the applicant needs to show that either his or her degree was taught in English or he or she has obtained a pass at Band 6 or above of the International English Language Testing System within the two years preceding the application.

    Applicants need to be aware that original documentation needs to be filed in support of their application with respect to each category in which they are claiming points; in the absence of such documentation, the application is unlikely to be approved.

    One of the main attractions of the HSMP is that, if the individual is able to obtain HSMP status, he or she is able to work for any company in the UK or even set up a UK business. Therefore it is recommended that, if an individual does qualify, he or she should apply for HSMP status even if currently on a work permit. However, some employers will not employ individuals with HSMP status because of this flexibility.

    UK Working Holiday Makers Scheme

    Under the UK Working Holiday Makers Scheme, a person aged between 17 and 30 may enter the UK for a period of up to two years provided that he or she is a citizen of one of certain countries (generally one of the Commonwealth countries).

    Figures for the financial year 2005-2006 show that 72,500 working holiday maker applications were made during that period, with the majority from Australia and the South Pacific, and Southern Africa.

    Individuals can work for up to 12 months during the two-year period. When employing a working holiday maker, an employer therefore needs 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, both the employer and the individual could be liable.

    If, at the end of the 12-month period, the individual wants to continue working and the employer wants to continue to employ him or her, it needs to be established whether or not the individual can change his or her immigration status (eg to work permit holder or HSMP status). If the individual is able to obtain a work permit, he or she will normally need to return to his or her country of residence to make an entry clearance application as a work permit holder. Interestingly, approval rates for such applications vary considerably depending on the country of residence.

    European nationals

    European nationals fall into three categories for UK immigration control purposes:

  • those from Bulgaria and Romania (which have been members of the EU and European Economic Area (EEA) since 1 January 2007);

  • those from the A8 accession countries (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia); and

  • those from the remaining EEA countries.

    • For the first three months, Bulgarian and Romanian nationals have a right of residence in any EU member state on an unrestricted basis. After three months, they can remain legally resident in that state for as long as they wish, provided that they are exercising a treaty right as a student, as a self-employed person or as an economically self-sufficient person.

    If a Bulgarian or Romanian national wishes to be employed in the UK, he or she will still need to obtain authorisation to work before starting any employment. This authorisation will take 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.

    Workers from the A8 countries are entitled to work in the UK, but they must register under the Worker Registration Scheme. However, once they have been working in the UK for 12 months under the Worker Registration Scheme, they will no longer need to register under the scheme and will be able to obtain an EEA residence permit confirming their right to live and work in the UK. The current fee to apply to register is £70.

    Employers that employ an unregistered A8 worker for more than a month and do not have a copy of the Worker Registration Scheme application form may face a penalty of up to £5,000.

    Individuals from the remaining EEA countries are entitled to work in the UK without special permission and without a work permit.

    Next week's article will look at the current framework and future changes relating to illegal working.

    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