This article gives an overview of the immigration procedures in relation to obtaining a full work permit in the United Kingdom for an overseas national.

The need for basic knowledge of immigration law when recruiting from abroad

An employer’s ability to recruit key personnel can be an important factor in its continued success. A major head-hunting coup can turn into a nightmare if a work permit application is refused, and many personnel directors and employment lawyers will have been on the receiving end of distraught telephone calls from Heathrow and Gatwick airports. Apart from being experts in employment and pensions law, those dealing with recruitment are now also expected to know their way around UK immigration law.

In February 2005 the Home Office announced a five year strategy for immigration Proposed changes to the Immigration Rules (February 2005) (www.practicallaw.com/2-200-2992). The new charging structure will be introduced from April 2007.

Who needs a work permit to work in UK?

It is a criminal offence to employ a person who is not entitled to work in the UK. However, an employer will have a defence if he has checked that the employee has specified documents. Employers must examine and retain copies of the passports or other required documents for all employees.

Many overseas nationals do not require a work permit. The most common groups of people who do not require a work permit are:

• British citizens (except British Dependent Territories citizens or British Overseas citizens).
• Certain citizens of British Overseas Territories.
• Individuals who have the right to abode in the UK.
• Persons who have indefinite leave to remain in the UK (also known as "settlement" or colloquially "permanent residence").
• European Economic Area (EEA) nationals. However nationals from eight of the countries which joined the EEA in May 2004 (Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovak Republic) are subject to the Workers Registration Scheme. Romania and Bulgaria will join the EU on 1 January 2007, but the UK Government is planning to will maintain controls on citizens from those countries for a transitional period.
• Swiss citizens.
• Commonwealth nationals who have a grandparent born in the United Kingdom or Islands.
• Commonwealth working holiday makers who are permitted to work for their period of stay.
• Highly skilled migrants. On 7 November 2006 changes were made to the Immigration Rules to provide that those wanting to come to the UK under the highly skilled migrant programme will have to meet a mandatory English language requirement and will be scored against specified criteria.
• Spouses or unmarried partners of UK work permit holders and their dependant children under the age of 18 (provided they satisfy certain conditions).
• Students who can work 20 hours a week in term time and full time in vacations providing they are not occupying a permanent position.

Business visits / self-employed persons

Business visitors and self-employed individuals do not need a work permit. A foreign national is permitted to visit the UK for up to six months as a visitor and may transact business during that time, but may not take up employment.

A foreign national who wishes to set up in business must apply for permission to enter the UK in a category that permits self-employment, for example the highly skilled migrant programme.

The work permit scheme

A work permit is a permission issued by Work Permits (UK) to allow an employer to employ a named individual in a specified job. The employer has to make the application. Prospective employees cannot make their own application.

There are two main types of work permit in the UK: a full work permit and a Training and Work Experience Scheme work permit. A full work permit can be issued for a period up to five years. At the end of four years, provided the employer wishes to continue employing the foreign national, the employee can apply for indefinite leave to remain in the UK. Therefore, if an employer is granted a full work permit, it has (in theory) the prospect of being able to employ the foreign national indefinitely.

Training and Work Experience permits are granted for a shorter period, usually twelve months, although this may be extended in some cases to 24 months. Foreign nationals coming under a Training and Work Experience Scheme work permit must sign an undertaking that they will leave the UK at the end of their work experience. It is extremely difficult to transfer a Training and Work Experience Scheme work permit to a full work permit. If an individual has been in the UK on a Training and Work Experience permit, they must leave the UK on the expiry of the permit and will not be eligible to apply for a full work permit for a further 12 months.

Highly skilled migrants

Many employees come to the UK in this category. This is a relatively new category, which permits both employment and self-employment and is based on a points system. However, from an employer’s perspective it is still better idea to bring in employees as full work permit holders, since they are then restricted to working for that employer. In contrast, a highly skilled migrant can take any form of employment or self-employment. Moreover, the current processing times for such applications stretch into several months, there can be considerable delays with these applications and the documentation required is substantial.

Therefore, from a practical point of view, these schemes should be avoided. Since October 2002 when the skills criteria were dramatically reduced, employers are principally concerned with the full work permit scheme. Applicants who formerly would have come within the Training and Work Experience scheme may now be eligible for full work permits.

Full work permit requirements

This scheme applies to foreign nationals who are filling a job that requires a graduate, or someone with a HND (higher national diploma) level qualification in the specific field, or a HND (not relevant to the position on offer) with one year’s relevant work experience. Separate considerations apply to sportsmen and sportswomen, and to entertainers. In addition, there is a sector-based scheme, which allows permits to be issued for less skilled workers in the hospitality and food processing industry.

The prospective UK employer must be able to show that a genuine vacancy exists, and that there is no suitable labour available in the UK or EEA to fill the vacancy. This can normally be established by advertising the position, unless the employer can show that the position and foreign national is unique, that only this individual has the necessary specialist skills and experience to carry out the job, and the job itself is very rare.

If the position is an intra-company transfer where in-house skills are essential, a board level position, a position which requires inward investment or is on a skills shortage list, then the employer does not have to advertise the position. In all other cases the employer has to demonstrate that it has made adequate efforts to fill the vacancy from either suitable labour in the UK or from nationals of other parts of the EEA (collectively known as the "resident labour force").

Those who hold more than a 10% share in the employer are not permitted to become work permit holders.

Procedure for full work permit

Ordinarily the employer must make the application while the foreign national is outside the UK. The potential employee should also remain outside the UK during the period the application is processed. It is possible for applicants to visit the UK while their application is pending, provided the visit is for less than six months, they intend to return overseas at the end of the trip and they do not take up employment while in the UK. There are a few circumstances where it is possible to switch immigration status in the UK but it is not possible to switch from visitor to work permit holder.

To apply for a full work permit the employer must complete a Form WP1, which is available from Work Permits (UK). The employer should fill in the form in as much detail as possible and it is often helpful to include an explanatory covering letter setting out details of the employer, the vacancy and the would-be employee. In addition, unless the application falls within the group of applications for which it is not necessary to advertise (Tier 1 applications), the employer must enclose:

·         Copies of educational certificates.

·         Copies of the advertisements showing date of publication and a schedule of interviewed candidates.

·         Any additional information and evidence that the employer thinks will help Work Permits (UK) to reach a decision, including reference letters confirming previous employment.

·         A fee of £153.

If this is the employer's first work permit application it should also enclose specimen publicity material, a certificate of incorporation and/or change of name, details of its premises and a copy of recent accounts.

It is not necessary to submit a copy of the foreign national's passport, although the passport number must be inserted in form WP1.

The application normally takes two to three weeks to be processed by Work Permits (UK). If it is approved, the work permit is usually sent to the employer who forwards it abroad to the foreign national.

When a permit is refused

There is no provision in immigration law for an appeal against a refusal to grant a work permit either by the employer or potential employee, and there is no formal procedure for appealing against such a refusal. However Work Permits (UK) has an internal procedure by which an employer can challenge a refusal within 28 days of the decision.

Work Permits (UK) will set out their reasons for rejecting the application. With this information it may be possible to ensure that the Department has correctly understood the applicant’s position and, if not, perhaps persuade them to review the decision on an informal basis.

Visa process

All work permit holders travelling to the UK for more than six months are required to obtain a visa known as "entry clearance" prior to travelling. If the work permit is for six months or less, only "visa nationals" will be required to obtain a visa. Once the work permit has been issued by Work Permits (UK) the employee must apply to the British Consulate, High Commission or Embassy in their place of legal residence. The employee will be required to submit various documents including his original passport and work permit in support of the entry clearance application. A fee will be charged for this application.

Dependants of work permit holders

Spouses and children under 18 of work permit holders may come to the UK but must establish their relationship with the work permit holder and obtain entry clearance before entering the country.

Since 5 December 2005 this has also applied to civil partners. Other dependants of intra-company transferees may also be able to come to the UK. They must go to their nearest British Consulate, High Commission or Embassy and make an application on the appropriate forms. The application is relatively straightforward. Dependants will be granted leave to remain in the UK for the same period as the work permit holder. Spouses and children are permitted to take employment without any further application or documentation being necessary.

Application for indefinite leave to remain

Since 3 April 2006, for all employment-related categories of entry to the UK (including work permit holders, highly-skilled migrants, investors, innovators, sole representatives, UK ancestry entrants, those setting up in business or self-employment, and retired persons of independent means), the qualifying period for indefinite leave to remain (settlement) increased from four to five years.

Therefore, if a full work permit holder spends a continuous period of five years in the UK as a work permit holder they can apply to the Home Office for indefinite leave to remain in the UK, provided that the employer states that it wishes to continue employing the permit holder for the foreseeable future. The application can be made in person and it will be necessary to show the passport(s) covering the last five years, the work permit and a letter from the employer confirming future employment. This application should be dealt with on the same day.

British citizenship

A foreign national who has held indefinite leave to remain in the UK for the last 12 months may be able to apply to naturalise as a British citizen. One of the principal requirements is are that during the previous five years the individual has not spent more than 450 days outside the UK and not more than 90 days in the last 12 months. Other requirements include sufficient knowledge of the English language and an intention to make the UK their home.

Avoiding delays

The need to obtain work permits is at best a time consuming obstacle and at worst an absolute bar on employing the right person for the right job. Two tips may help to ease the personnel department's burden:

• Understand how the work permit system operates. Much time can be wasted in filing an impossible application in the wrong place.
• Supply the correct documentation and, if necessary, clarify the basis of the application in a covering letter. The form WP1 must be completed as fully as possible. An application will be delayed if Work Permits (UK) needs more information or clarification.