1.0 Introduction
In order to encourage employers to consider applicants'
eligibility to work in the United Kingdom, a criminal offence was
created in the Asylum and Immigration Act 1996. It means that as an
employer we could be guilty of a criminal offence if we employ
someone who does not have permission to be in - or to work in - the
United Kingdom. This does not mean that employers will be expected
to act as immigration officers. Responsibility for immigration
control remains firmly with the Immigration Service. However,
please note that employers who commit this offence may be liable to
a fine of up to £5,000 for each employee illegally employed. The
purpose of this paper is to give some guidance to managers and
staff involved in the recruitment and selection process of the
principal implications of the Asylum and Immigration Act for
appointments to University posts, and the procedures to be followed
to obtain work permits where these are necessary. Please note that
all work permit applications for University staff are made by the
HR Department and forwarded for consideration to Work Permits (UK),
Immigration and Nationality Directorate, Home Office,
Sheffield.
2.0 The Offence
Under section 8 of the Asylum and Immigration Act 1996, from
27th January 1997, it became a criminal offence to employ a person
aged 16 or over who is subject to immigration control unless:
- that person has current and valid permission to be in the
United Kingdom and that permission does not prevent him from taking
the job in question; or
- the person comes into a category where such employment is
otherwise allowed.
3.0 The Defence
The Act provides a defence, which is available to all
employers. If you establish a defence you will not be convicted
even if it turns out that a person you are employing is subject to
immigration control and is working without any necessary
permission. The defence will be valid unless it can be shown that
you knew the person was not entitled to work when you took him or
her on. In order to establish a defence, you would need to ensure
that you see an original document, which appears to be one of
those, described in the list of specified documents.
On 1
May 2004, the Government introduced changes to the types of
document which employers need to check and photocopy/record to
avoid employing illegal workers; for a full description of the
steps that an employer should now take, please click
here.
4.0 Avoiding Racial Discrimination
The University is committed to promoting diversity and the
Asylum and Immigration Act 1996 co-exists with the race relations
legislation. To reiterate, the Race Relations Act 1976 makes it
unlawful for an employer to discriminate on the grounds of race,
colour, ethnic or national origin or nationality. There is no limit
on compensation in race discrimination cases and employers need to
be careful that they do not simply swap one type of liability for
another. The best way to ensure that you do not discriminate is to
treat all applicants the same way at each stage of the recruitment
process. A Code of Practice aims to provide employers with guidance
on avoiding conviction under Section 8 of the Asylum and
Immigration Act 1996 in a way that does not result in unlawful race
discrimination. The Code emphasises the employer's statutory duty
to avoid race discrimination in recruitment practices but does not
in itself impose any legal obligations. While breach of the Code is
not a breach of the law, failure to observe the Code can be used in
proceedings before an Employment Tribunal.
The University's application form asks all applicants if they
require a work permit to work in the UK and at the first day
induction with HR all new starters are asked to provide a number of
documents including their national insurance number, P45, copy of
birth certificate and certificates of qualifications.
5.0 Impact of the 1999 Act
- The Asylum and Immigration Act 1999 prohibits anyone from
providing immigration advice unless he or she is qualified to do
so, i.e. by being registered with the Immigration Services
Commissioner (OISC), by being granted a certificate of exemption by
the Office of the Immigration Services Commissioner (OISC), or by
being a qualified Immigration Solicitor, Barrister or legal
executive. The aim and purpose of the Act is to promote good
practice and to ensure that unscrupulous people are not making
money out of giving immigration advice.
- From 1st April 2001 anyone giving immigration advice who is not
registered to do so is liable to prosecution. This Code
requires Universities to have a policy stating that only designated
staff should give immigration advice. There are designated
student advisers in the University's Counseling and Advisory
Service who are able to give immigration advice to students.
Under no circumstances should anyone in the University other than
the designated student advisers give any advice to students on
immigration.
- The University is exempted by Ministerial Order (e.g. as an
employer providing advice only to our own staff or prospective
staff). Thus we would be qualified, under the terms of Part V of
the Immigration and Asylum Act 1999 to provide advice or services
in connection with work permit applications. State educational
institutions and their student unions, together with health sector
bodies, are similarly not regulated by the OISC, although they are
required to comply with the Commissioner's Code of Standards. It is
imperative that all staff dealing with work permit applications are
aware of this Code of Standards. This can be found at the following
website: http://www.oisc.gov.uk/
6.0 Exemptions
The following nationals do not require work permits:
Nationals of countries within the European Economic Area
(EEA). These are Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Iceland, Ireland, Italy, Liechtenstein,
Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, United
Kingdom. Since 1 May 2004, ten further countries
joined the European Union and also became a part of the EEA:
Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta,
Poland, Slovakia and Slovenia. Nationals from
these countries are also free to come and work in the United
Kingdom, however the Government has set up a new Workers
Registration Scheme to monitor the impact on the labour market of
workers from these new entrants, except for Cyprus and Malta).
Employer should copy the application before submitted to the Home
OIffice.
Other overseas nationals who not require
work permits include:
- Swiss Nationals (this came into effect from 1st June
2002).
- British Overseas Territories Citizens except those from
Sovereign Base Areas in Cyprus. (Those included are Anguila,
Bermuda, British Antarctic Territory, British Virgin Islands,
British Indian Ocean Islands,Cayman Islands, Falkland Islands and
dependencies, Gibraltar,Monserrat, Picaim Islands, St. Helena and
Dependencies and Turks and Caicos Islands).
- Commonwealth citizens given leave to enter or to remain in the
UK on the basis that a grandparent was born here.
- Husbands, wives and dependent children under 18 of work permit
holders, or who qualify under any of these categories as long as
the endorsement in their passport places no restriction on their
employment here.
- Those who do not have any conditions attached to their stay in
the UK,
- People admitted as academic visitor.
7.0 Academic Visitors
To encourage academic interchange the Home Office is prepared
to waive the permit requirement for certain academics and
researchers who wish to come to the United Kingdom for short
periods. Academics who are sponsored by a charitable, educational
or research organisation may be admitted to the United Kingdom as
visitors, without obtaining a work permit, provided that:
- The person will not be paid from a United Kingdom source (other
than for expenses or on an exchange basis);
- There is no mention of an appointment to a normal post which
might otherwise be available to resident labour and;
- The visit is incidental to - or in preparation for - a career
abroad
- The visit will not exceed 12 months.
- A person who falls within one of the above categories and who
is a United States Citizen or other non-visa national does not
require prior entry clearance unless the visit is over six months
and under twelve months. Visa nationals must be in possession of an
Entry Clearance granted for that purpose prior to arrival in the
United Kingdom.
Academic visitors should obtain entry clearance by submitting
a letter of invitation to their nearest British Embassy prior to
travelling. Please note that certain overseas nationals will also
be required to obtain visas before travelling, again the nearest
British Embassy can advise.
8.0 Students
European Economic Area (EEA) students: Any
EEA student can work in the United Kingdom without being required
to obtain permission.
Non EEA
Students: Since 21st June 1999
international students over the age of 16 who are not nationals of
a European Economic Area (EEA) country, and who have in their
passports a stamp prohibiting them from working "without the
consent of the Secretary of State" (see overleaf) are no longer
required while studying in the UK to obtain the Secretary of State
for Work and Pensions' permission on an individual basis.
This means that they no longer have to apply to their local job
centre or to Work Permits (UK) in order to:
-
Take spare time and vacation
work,
- Undertake a work placement with an employer
which is part of their course of study ("sandwich students"),
International students who wish to take
part-time and vacation jobs are subject to the following
conditions:
- The student must not take work for more than 20 hours per week
during term-time, except where a work placement is to be undertaken
as a necessary part of their studies with the agreement of the
education institution.
- The student must not engage in business, self-employment or the
provision of a service as a professional sportsperson or
entertainer.
- The student must not pursue a career by filling a permanent
full-time vacancy.
These arrangements do no apply to people admitted to the UK as
visitors or students on short courses of six months or less who are
granted leave on conditions prohibiting employment.
Instead of checking the Permission to Work for an Overseas
Student form previously issued by a job centre an employer can now
be satisfied that if a student has been granted entry to the UK
with the following endorsement stamped in their passport then the
student is permitted by the Secretary of State for Employment to
take part-time and vacation work in accordance with the criteria
set out above.
Overseas students are admitted to the UK with an endorsement
stating that:
Leave to enter/remain in the United Kingdom, on condition that
the holder maintains and accommodates himself and any dependants
without recourse to public funds, does not enter or change
employment paid or unpaid without the consent of the Secretary of
State for Work and Pensions and does not engage in any business or
profession without the consent of the Secretary of State for the
Home Department is hereby given for/until...."
This stamp allows students to take on part-time or vacation
work, although certain conditions still need to be met, as outlined
above.
9.0 The Work Permit Scheme
The term 'Work Permit' means a permit issued by Work Permits
(UK). Work permits are issued for a specific job with a specific
employer for a specific duration. Thus, to ask an applicant whether
they have a "work permit" indicates a misconception of the term.
But it is appropriate to ask applicants if they have permission or
freedom to work in the UK, although the same question must be asked
of all applicants to avoid claims of race discrimination. Remember
that the population of the United Kingdom is ethnically diverse.
Most people from ethnic minorities are British citizens. Many were
born here. Most non-British citizens from the ethnic minorities are
entitled to work here.
There are often situations where specialist or unique
knowledge and skills are required for research, teaching or
technical purposes and when it is not possible to gain these in the
UK, we have to apply through the Work Permit Scheme to recruit a
foreign national who fulfils our skills gap.
The Work Permit Scheme is a fairly complicated and rigorous
process, which can result in a non-successful application, if the
strict criteria for selection are not rigidly adhered to. For
example, we have to ensure that:
- we only apply for permits for posts requiring either: a
recognised degree qualification or equivalent professional
qualification (s), or;
- Senior executive or administrative skills; or
- Highly qualified technicians with specialised or rare
skills.
Overseas nationals who meet these requirements are also
expected to have substantial relevant experience, normally two
years at the level of the post on offer.
It will also be necessary to show, normally by advertising,
why a resident worker cannot fill the post. It is important to note
that the type of recruitment advertising campaign that is utilised
in order to gain the 'right person' needs to be an extensive one to
ensure that the interests of the resident labour market are
protected. For example, in national advertising or profssional
publications throughout EEA.
Work permits will not be approved for jobs at manual, clerical
or secretarial levels.
It should be noted that in order to enter the UK overseas
nationals may require an entry visa from their nearest British
Embassy/Consulate, which should be obtained for themselves and
their dependants before travelling. This process can take up to a
month to complete and departments are asked to consider this when
planning the commencement date of an appointment. Nationals from
the USA, Canada, Australia and New Zealand will not normally
require an entry visa.
There is more detailed guidance on the Work Permits (UK)
website about the supporting documents that would be required by
the HR Department to process any work permit applications.
Work Permits (UK) introduced charging for the consideration of
work permit applications from 1st April 2003. The charge for each
type of work permit application is £153 and the charge will be
reviewed on an annual basis to ensure that no profit is made from
the service. Work Permits (UK) charge for the consideration of
initial Work Permits, Work Permit Extensions, Change of Employment
and Appeals. The HR Department does not have a central budget to
pay for this and the cost is always charged to the department,
which is making the application on behalf of their member of
staff.
Multiple Entry Work Permits
This type of permit allows individuals who will be based
overseas to enter the UK to work for short periods of time on a
regular basis. This means that they are not required to have a new
work permit for each time they enter the UK to work.
The criteria these work permits are considered against are the
same as for standard work permits. They can be issued for a maximum
of two years or a minimum of six months and applications can only
be made while the individual is out of the UK.
These permits cannot be extended and periods spent working on
one cannot be taken into account for Indefinite Leave to Remain
applications. The employee is not entitled to take supplementary
employment whilst on this type of permit.
10.0 UK Residence Permits
On 17th June 2003 the Home Office introduced changes to
immigration policy that included the introduction of residence
permits for non-EEA (European Economic Area) and non-visa nationals
who wish to stay in the UK for more than six months. People in
these categories will be required to have clearance to enter the UK
before they arrive.
Background
This change is the result of European Union legislation that
agreed a uniform format for residence permits for 'third country'
(i.e. non-EU/EEA) nationals who wish to stay in an EU member state.
The UK opted into this agreement as part of the effort to prevent
people entering or remaining in the UK using forged documents. UK
residence permits do not entitle people to stay in other EU member
states or allow those people granted permission to stay in other EU
member states to come to the UK. They also do not alter the
conditions on which a person many enter the UK.
Timescale
Since 13th November 2003 all nationals from the countries
listed below who wish to stay in the UK for more than six months
will be required to have prior entry clearance. These countries
were chosen as their citizens form the majority of people who wish
to stay for more than six months in the UK.
- Australia
- Canada
- Hong Kong (not British Nationals
(Overseas))
- Japan
- Malaysia
- New Zealand
- Singapore
- South Africa
- South Korea
- USA
For further details please click on the link below:
Further information can be found on the UK Visas website
(www.ukvisas.gov.uk) and the Immigration and Nationality
Directorate (IND) section of the Home Office website (
http://www.ind.homeoffice.gov.uk/)
An overseas national must not take up employment until the
work permit has been obtained. The HR Department is unable to put
individuals on the payroll until the work permit has been approved
and leave to remain is granted.
Work Permits (UK) have recently announced that an employer
must notify Work Permits (UK) if a person does not take up
employment for which a work permit has been issued or if the
employment of a work permit holder ends before the expiry of the
work permit.
Work Permits (UK) will consider whether the individual still
meets the requirements of the Immigration Rules under which he/she
was admitted and may make action to curtail the individual's leave
to remain in the UK, as well as the leave to remain for any
dependants. The employer is also required to assist Work Permits
(UK) and the Home Office in conducting pre and post issue
checks on compliance with work permit arrangements.
The notification is made by way of a form ("Notification of
Premature End of Employment") which is available on Work Permits
(UK)'s website. The form must be completed and signed on behalf of
the UK employer and be returned to Work Permits (UK) by post.
If you require any further information, please do not hesitate
to contact the HR Department. Alternatively, you may wish to check
the Work Permits (UK) website at
http://www.workpermits.gov.uk/