Immigration Requirements

OVERVIEW

With limited exceptions, a non-EEA national who is subject to immigration control must obtain a work permit to be able to take up employment in the UK.  The UK work permit scheme is administered by Work Permits (UK) on behalf of the Home Office.  In January 2002, the Home Office launched the Highly Skilled Migrant Programme. There are proposals to discard the work permit scheme and replace it with a simpler points based system in the future.  

WORK PERMIT REQUIREMENTS

Workers who require a permit.  Certain limited categories of persons do not require work permits – these include nationals of the EEA, Commonwealth citizens with leave to enter or remain in the UK on the basis of recent UK ancestry, persons with indefinite leave to remain in the UK, Gibraltarians, business visitors and persons wishing to engage in certain specified occupations (e.g. ministers of religion and representatives of overseas firms who are seeking to establish a UK branch or subsidiary).  All other foreign workers must hold a valid work permit in order to enter and work in the UK.  A visa may also be necessary before the individual is allowed to enter the UK.  In addition, all individuals entering the UK for a stay of more than 6 months, with the exception of those coming from EEA member states, require prior entry clearance, which should be obtained after the work permit.

Eligibility to apply.  Work permit applications may only be made by employers based in the UK who need to employ a person in England, Scotland or Wales.  Overseas companies cannot make applications, nor can individuals apply on their own behalf.  The application should be made for a named person to do a specific job, normally on a full-time basis.  Permits are only issued for certain categories of skilled work, and are not issued for jobs at manual, craft, clerical, secretarial or similar levels.  Work permits are not transferable between employers unless permission is firstly sought from Work Permits (UK).

Work permit criteria.  Work permit applications are considered against the following four basic criteria:

(a) Whether there is a genuine vacancy for an employee in the UK.

(b) The skills, qualifications and experience needed for the job – the nature of the job itself must require the qualifications or skills listed in (c) below.

(c) The qualifications and experience of worker – work permits are normally only issued for people who have one of the following qualifications or skills: a UK equivalent degree level qualification; a Higher National Diploma (HND) level occupational qualification which is relevant to the post on offer; a general HND level qualification which is not relevant to the post on offer plus one year’s relevant work experience; at least three years’ high level specialist skills acquired through doing the type of job for which the permit is sought (the type of job being at NVQ level 3 or above).

(d) Availability of ‘resident workers’ – the employer will need to show why it cannot fill the post with a suitably qualified ‘resident worker’ (i.e. a person who is an EEA national or has settled status within the meaning of the Immigration Act 1971).  Except in Tier 1 applications (see below) the employer will usually need to show that it has advertised the vacancy appropriately: this will generally mean advertisements in local, national and/or EEA press, and in any appropriate trade and professional journals or appropriate websites.

WORK PERMIT APPLICATIONS

Application forms are available online from the Work Permits (UK) website.  Guidance notes for their completion, including further details of evidence to be furnished, are also available online.  A fee of £153 is charged per application.  There are two types of application, Tier 1 and Tier 2.  Both types of application can be made up to 6 months in advance of the proposed date of entry of the worker and must state the length of permit required, which may be for up to 5 years.

Tier 1 applications.  Tier 1 applications may be made if the post meets the qualification and skills criteria set out above and the application falls under one of the following categories:-

(a) Intra-company transfers (“ICT”) – for employees of multinational companies who are transferring to a skilled post in the UK.  The post must require an established employee who has essential company knowledge and experience.  The transferring employee should have at least six months’ experience working for the overseas company.  To qualify for an ICT, the British company must have a direct link with the overseas company by common ownership;  

(b) Board level posts – for senior board posts or posts at an equivalent level.  The person must have a personal daily input into directing the company at a strategic level, and should have substantial senior board level experience;

(c) Inward investment – for new posts that are essential to an inward investment project by an overseas company, bringing jobs and money to the UK.  The minimum investment normally needed to qualify under this category is £250,000;  

(d) Shortage occupations – for occupations where suitably qualified people are in very short supply.  A list of the occupations which Work Permits (UK) recognise as being in short supply can be obtained from the Work Permits (UK) website or by telephoning  (+44) (0) 114 259 4074.

(e) Sponsored Researchers – this is a relatively new category for people who have a job overseas, who are still being paid for that job and have come to the UK to undertake a period of research at an employer/host organisation. This section also encompasses those on paid/unpaid sabbaticals. This list is not exhaustive. Further information can be obtained from the Home Office website.  

If an application qualifies under any of the Tier 1 categories the employer need only describe why it needs to employ the person and it does not have to undertake any recruitment search.

Tier 2 applications.  For all other applications, the employer must give details of the attempts it has made to fill the post with a resident worker by providing supporting documents such as copies of advertisements placed (which should have been placed within the 6 month period prior to the application).  The recruitment methods used, including advertising, should be appropriate to the job and represent a genuine attempt to employ a suitably qualified person.  The employer will also be expected to provide details of the responses to the recruitment efforts, along with reasons why ‘resident worker’ candidates were declared unsuitable for the post.

The Training and Work Experience Scheme (TWES) This is a specific type of work permit which enables UK employers to provide training for a professional or specialist qualification, or work experience to non-EEA nationals. To qualify under this category, the following conditions must be met:- (i) they should not be filling a position that would otherwise be filled by a resident worker; (ii) the training/work experience should be for a minimum of 30 hours per week; (iii) they must already have a relevant academic/vocational qualification of at least N/SVQ level 3 or equivalent; and (iv) the pay and conditions should be in line with that of a ‘resident worker’ doing this kind of work experience.  

Proof of Trading Presence.  If the employer has not applied for a work permit in the four years preceding the application, it must provide documents showing proof of a trading presence  (e.g. the company’s latest audited accounts or annual report).  If the employer provides services to a client under a contract, copies of contracts between all parties should also be provided.

Extending work permits. Applications to extend work permits must be made on Form WP1X (form SR1 for Sponsored Researchers) stating for how long the extension is required.  The worker can continue to work for you after the expiration of the current permit while the application is being considered, provided the application for an extension is submitted before the person’s existing work permit permission and leave to remain in the UK expires.  A fee of £153 is also charged on extension applications.

Successful applications.  If the worker is outside the UK, within 6 months from the date the permit is issued, he or she must apply to a local British Mission for entry clearance before travelling if they intend to stay in the UK for more than 6 months.  If the worker is already in the UK, he or she must apply for limited leave to remain in the UK.  If the worker is a national of one of the EU member states which joined in 2004, with the exception of Cyprus and Malta, he or she must register as a worker. Separate fees are payable for each of these applications.    

HIGHLY SKILLED MIGRANT PROGRAMME

The Programme.  The Highly Skilled Migrant Programme is a points-based scheme introduced by the Home Office in January 2002, and is designed to allow individuals with exceptional skills and experience to come to the UK to seek and take up employment or work on a self-employed basis.  Applications are made by individuals to Work Permits (UK).

The Points Scheme.  To be successful, applicants must score 65 points or more across a range of measures including qualifications, work experience, past earnings and special achievements.  They must also demonstrate that they are able to continue their chosen career in the UK, are willing and able to make the UK their main home and support themselves and any dependants without recourse to public funds.  Two different point schedules apply depending on whether the applicant is under or over 28. There are also specific provisions relating to general practitioners and those holding MBA qualifications. Full details of the programme are available from the Work Permits (UK) website.

Successful Applications.  Successful applicants will be granted permission to enter the UK for an initial period of twelve months.  At the end of this period, applicants may request an extension of up to a further three years.  As with the work permit scheme, after four years’ presence in the UK, a Highly Skilled Migrant may apply for permanent residence.   

THE SCIENCE AND ENGINEERING GRADUATE SCHEME

The Programme and Eligibility. This scheme allows nationals from non-EEA countries who

(i) have graduated from a UK higher or further education establishment;

(ii) have graduated in certain physical sciences, mathematics and engineering subjects; and

(iii) have attained a grade 2.2 or higher, to remain in the UK for 12 months after their studies in order to pursue a career.

The caveat is that at the end of the 12 month period, they must leave unless granted leave to remain as a work permit holder, highly skilled migrant, business person or innovator. The Department for Education and Skills has a list of eligible courses.

EMPLOYING ILLEGAL WORKERS

Criminal liability.  It is a criminal offence for an employer to employ a person who is not entitled to work in the UK.  An employer found guilty of an offence is liable to a fine not exceeding level 5 for each illegal worker employed.  An employer will have a statutory defence to any prosecution if it has checked the original and kept a copy of one or more of a number of specified documents verifying the individual’s right to work in the UK (check the Work Permits (UK) website for a full list).  If an employee provides a UK or EEA/Swiss passport or national identity card, no other documents are required.  If an employee does not provide this, an employer must ask for either:

(a) a document giving the person’s National Insurance number plus a UK birth certificate or a letter from the Home Office confirming indefinite leave to remain, or that the person can take the type of work the employer is offering; or

(b) a work permit or other work approval plus a passport endorsed to show the person can take up employment or a letter from the Home Office confirming that the person can take the work permit employment in question.

Although it is not compulsory, it is advisable for an employer to ask potential employees to produce at least one of these documents prior to the start of their employment so that it can take advantage of the statutory defence.  However, the defence will not be available if the employer has actual knowledge that it would be an offence to employ the individual.

Race Discrimination.  An employer who carries out more rigorous checks on potential employees who look or sound foreign may be found liable for unlawful race discrimination.  Therefore, it is important that all applicants are treated in the same way and are asked to produce the same type of document verifying their right to work in the UK.  The Government has issued a Code of Practice containing guidance on the measures which employers are expected to take in order to comply with their obligations and to avoid unlawful race discrimination.  The Code of Practice is available from the Immigration and Nationality Directorate website.