Immigration: transferring an employee to the UK

When transferring a staff member from an overseas branch to the UK, an employer must consider a number of factors, and in particular those relating to immigration, timescales and family members.

Can the employee legally work in the UK?

It may be that the employee concerned already has the right to work in the UK and therefore does not need a work permit. However, an employee with the right to work here may still need to formalise paperwork before travelling to the UK. For example, someone who is a British citizen but who has spent his or her entire life in another country may never have applied for a British passport.

In addition, family members such as children, de facto partners or parents/grandparents may need to obtain a visa before they can enter the UK. For example, the American wife of a French citizen who is being transferred to the UK may not have the right to work in the UK. Therefore, the wife would need to obtain a 'family permit' from her nearest British Embassy, before travelling to the UK.

An employer should always take steps to check that an employee has his or her paperwork in order before he or she sets out for the UK. The employee's start date could well be delayed by a need for a last-minute passport renewal or by a family member being refused entry to the country.

What steps will be necessary if the employee cannot legally work in the UK?

Work permit

The employer may need to obtain a work permit in order to employ the individual concerned.

There are special work permit criteria for transferring an overseas based employee to the UK if he or she has 'essential knowledge and experience' gained through working for an overseas branch of the company. In particular, the work permit application does not have to show that the position was advertised nationally, making it considerably more straightforward than a normal work permit application. However, the employer must prove that the overseas branch or subsidiary has employed the employee for at least the preceding six months. This is normally demonstrated by enclosing copies of the employee's wage slips from overseas. In addition, the application must show the link between the employer and the overseas company, as well as details of the employee's 'essential knowledge and experience' that have made the transfer necessary.

It must be remembered that, once the application is approved, the employee and any family members will be required to obtain visas before travelling to the UK.

Vander Elst visas

If an EU-based employer needs to transfer an employee to the UK to provide services to a client, then it may be possible to obtain a 'Vander Elst' visa for the employee instead of a work permit. In effect this allows an EU employer that may not have a presence in the UK to move staff into the UK to carry out contracts. It may also be of assistance when an EU branch of a company is transferring an employee to the UK on a temporary basis to meet client needs and the UK branch does not want to employ the individual directly or go through the work permit process.

This visa is an option only if the employee has been legally employed by the EU employer for at least 12 months, and he or she is legally resident in the EU state where the employer is based.

For example, a French advertising agency may wish to transfer an account executive to the UK to advise a client on a particular campaign. The employee will be based at the client's premises in the UK for a few months, during which time he or she will continue to be paid by the French employer. At the end of the secondment, the employee is expected to return to France. In this case, the employee may be eligible for a Vander Elst visa.

An employee must make his or her Vander Elst visa application at the nearest British Embassy in the EU country in which he or she lives. There is no fee and, if approved, the employee will be given permission to stay for as long as he or she is required to be based in the UK.

What considerations have to be given to family members?

An employee who is being transferred to the UK will often want to bring family members with him or her. If these family members do not have an automatic right to live and work in the UK then, before travelling, they will have to apply for permission to join the employee in the UK.

However, the UK Government has rules regarding which 'family members' it will allow to enter the UK. For example, UK law does not make provision for parents or grandparents to join an employee coming to the UK under a work permit. Therefore, if an employee needs a work permit to work here legally, he or she is unlikely to be able to bring any dependent parents or grandparents. It would be entirely at the discretion of the visa officer whether to allow such family members permission to come and stay in the UK.

In addition, UK law does not make provision for children who are aged over 18 to join a parent who is here on a work permit, unless the employee obtained the work permit because of an international transfer. However, even in the latter case, the visa officer would need sufficient proof that the child remained 'genuinely dependent' on the work permit holder.

It is best to check which family members an employee wants to bring to the UK and whether they will be able to get permission to live here before formalising any transfer agreement.

How long will it take to transfer an employee to the UK?

The Home Office normally takes one to two weeks to process work permit applications. However, an employer should also take into account the time that it takes to gather together the necessary documents to submit in support of an application, such as copies of wage slips from the overseas branch.

Once a work permit is approved the employee and his or her family members will need to make visa applications at their nearest British Embassy. These applications could take as little as one to two days, or as long as eight weeks to process, depending on the Embassy concerned.

An employee who is applying for a Vander Elst visa should have to wait only a few days for a decision. Applications submitted by any dependent family members should be processed at the same time.

The time frames involved in bringing out employees who have the right work in the UK will depend on whether any paperwork must be organised in advance of the trip. For example, an employee with the right to work in the UK because of British ancestry will need to obtain proof of this and apply for a visa before travelling to the UK. This process could take several weeks, as birth certificates proving UK ancestry may need to be located.

What other issues should an employer consider?

In addition to immigration issues, there are a number of other employment issues that are relevant when transferring an employee to the UK. Often employers will deal with these by way of a secondment or similar agreement.

As well as the usual employment issues, a secondment agreement can deal with issues such as the duration of the secondment, salary arrangements, the extent to which the employee's terms and conditions of employment in the overseas branch will apply during the secondment and what will happen when the secondment comes to an end. Salary arrangements may have tax implications, for example if the employee is paid by way of a foreign currency into a bank account outside the UK. As a result, the employer may wish to consider paying for the employee to have separate tax advice. In addition, the employee will almost certainly need to register for a national insurance number.

The payment of relocation expenses is often an important issue for transferring employees. Any secondment agreement should set out what has been agreed. Such arrangements may include the cost and class of flights for the employee and his or her family, the cost of transporting belongings and placing pets in quarantine, and the cost of temporary accommodation on arrival in the UK.

Next week's article will be the first in a series of four looking at violence in the workplace.

Nicola Appleton is a solicitor in the immigration team at Lewis Silkin (Nicola.Appleton@lewissilkin.com)

Emma Perera is a solicitor in the employment team at Lewis Silkin (Emma.Perera@lewissilkin.com)

Further information on Lewis Silkin can be accessed at www.lewissilkin.com