It may sound like a really fundamental question, but could you explain what the difference is between a Work Permit and a visa? Do you know who needs to apply for one and when? I thought I knew, but when I came to explain it to a client I became a little tongue tied. In case you’re not entirely confident what your answer would be, read on…
A Work Permit is legal authorization from a country’s government which allows a non-citizen to take a job within that country. The UK Border Agency has the power to issue an employer a Work Permit, and grant them permission, to employ someone in a specific role at a specific location. It is not blanket permission for someone to take up work in the UK. So it’s your client, not you or the Candidate, who has to apply for and obtain the Work Permit.
Do you know who needs a Work Permit? If the Candidate falls into one of the following categories of people, they can take up any lawful employment in the UK and don’t need one:
- Nationals of EU/EEA countries
- Those with Indefinite Leave To Remain in the UK (Permanent Residence)
- Those in the UK as the spouse of an EU/EEA national
- Those in the UK as the spouse of a Work Permit holder, Training Permit Holder Sole Representative, Investor, Student, Ancestry visa holder.
- Commonwealth citizens with Ancestry visas (sometimes called ‘patriality ) – the Candidate can get one of these visas if they are a Commonwealth citizen and have at least one grandparent who was British and was born in the UK. (To get one of these visas the Candidate should apply at the British High Commission in their home country. These visas are usually issued for a period of 4 years; after 4 years in the UK they will is generally be eligible to obtain permanent residence).
- Those in the UK on a visa as the ‘partner’ of an EU/EEA national, Work Permit holder, Training Permit Holder Sole Representative, Investor, Student, Ancestry visa holder. (These visas are issued in cases where the partners are not legally allowed to marry (for example because one or both of them are married to someone else) and have been co-habiting for at least 2 years prior to the visa application.)
Once you have established whether or not your client has to apply for a Work Permit, you must establish and ensure that the Candidate has the necessary visa allowing them to enter and work in the UK. This permission is conferred on an individual by a UK Immigration or Consular officer who, following the issue of a Work Permit, may issue them with a suitable visa. The visa is an endorsement stamped in a passport, and is a conditional authorization granted by a country to a non-citizen to enter and temporarily remain within that country.
You may not know this but even if a Candidate is already working in the UK on a Work Permit, and therefore has a suitable visa, if they want to move to another job, the new prospective employer must obtain a new Work Permit before the Candidate can change jobs.
If your Candidate is not in one of the above exempt categories, in order to take up lawful employment in the UK they will need a Work Permit and a suitable visa. Even if your client is perfectly willing to apply for the requisite Work Permit, it is the Candidate’s responsibility to apply for the requisite Visa.
The UK has a points-based 5 tier visa system which is the main route for Candidates from outside the European Economic Area (EEA) to come to the UK to work, which separates Candidates into five “tiers”.
In order to be eligible for a visa in any of the five tiers, your Candidate must pass a points-based assessment. In work visa applications, points are generally awarded according to the Candidate’s ability, experience and age. The Candidate must score above a minimum threshold for the application to be successful. The minimum number of points required varies for each tier.
The five tier visa system consists of the following:
- Tier 1: This visa category is for ‘high-value migrants’ from outside the EEA and covers entry of entrepreneurs, investors, and those very few people who come under the ‘exceptional talent’ visa.
- Tier 2: This category is for ‘skilled workers’ from outside the EEA with a job offer in the UK. It includes skilled workers who are transferred to the UK by an international company, skilled workers where there is a proven shortage in the UK, ministers of religion and sportspeople.
- Tier 3: This category was designed for low-skilled workers filling specific temporary labour shortages. The Government has so far never allocated any visas under this scheme.
- Tier 4: This category is for students aged over 16 from outside the EEA who wish to study in the UK. Candidates must have a place at a registered UK educational establishment before they can apply.
- Tier 5: This category contains six sub-tiers of temporary worker including creative and sporting, charity, religious workers, and the youth mobility scheme which enables about 55,000 young people every year to work in the UK on working holidays. The visas are awarded to young people from countries that have reciprocal arrangements with the UK.
Most Candidates will require a Certificate of sponsorship in order to be successful in their applications under the 5 Tier system. Unfortunately the UK and most EU countries do not allow agents like you to sponsor Work Permits – they require sponsorship by the client. As a recruitment agent, you would probably prefer to leave Work Permit issues to the Candidates wherever possible. Unfortunately most countries require Work Permits to be applied for by the potential employer and not the individual.
Your best bet then is to ensure you know the easiest way for your client to make the Work Permit application. There are websites geared up for such applications into which data regarding the client and Candidate can be entered online followed by a 10 minute call. Your client would then sign a completed application that is emailed to them. To help your Client as much as possible I’d suggest that you provide
- Details of all recruitment efforts made on behalf of your client
- Details of responses to the above recruitment efforts
- Copies of any advertisements placed to find staff within the UK
- Details of the Job Specification for the position
- References covering as much as possible of the last 5 years of the Candidate’s employment.
(Unless Candidates have recognised shortage skills, these references should usually be on Corporate headed writing paper, must confirm the dates of their employment, and must state their position. It is helpful to have references that detail the technical skills the job(s) require. However, testimonials to character and competence are generally not required.
If a Candidate does not want to part with original documents, it may be possible to submit notarised copies.)
- Copies of the Candidate’s tertiary (i.e. degree level and beyond) and professional qualifications.
- A copy of any previous Work Permit that the Candidate has held.
- Details of the Candidate’s date of birth, nationality, education and career (i.e. a CV).
The reason for all these hoops you, your Client and your Candidate have to jump through is of course, the prevention of illegal working. The UK Border Agency works with employers to ensure illegal workers cannot obtain work in the UK and continues to take tough action against employers who make use of illegal labour.
An employer is acting unlawfully if they employ a person who does not have the right to work in the UK. The law on the prevention of illegal migrant working is set out in sections 15-25 of the Immigration, Asylum and Nationality Act 2006. Employers have a responsibility to prevent illegal working in the UK. If your client employs an illegal worker, well…we’ll come to that later…
It’s not good enough to accept what your Candidate tells you either. If your client is presented with a false visa or documentation they could be subject to legal action if the falsity is reasonably apparent. Equally if it is reasonably apparent that the Candidate presenting the documentation is not the rightful holder of the documents, the Client may be subject to enforcement action even if the document itself is genuine.
It’s crucial that if the Candidate is going for a long term placement, a full check must be carried out not only before recruitment, but every 12 months. If only a partial check is carried out or follow up checks are not carried out it would increase the level of penalty your client could receive.
In view of the fact that you as an agency have probably indemnified your client against any liabilities, it is very much in your interest to make sure that they do everything correctly.
Because do you know what happens if you supply your client with a Candidate who is not allowed to work in the UK? In the past it was largely the Candidate that suffered when someone was found to be working illegally. Increasingly penalties now fall to the employer and, unfortunately, they are becoming ever more severe.
Until 1997 if a Candidate was employed illegally, then they could be deported and would suffer a ‘black mark’ on their immigration history, but the employer faced no legal liability for having employed them.
In 1997 it became a criminal offence to employ someone in breach of their visa conditions. Penalties include a potential fine of £5,000. The law has now changed again. If a Candidate is employed in breach of their visa conditions they are not be subject to deportation proceedings. Instead, they will be treated as an illegal entrant. While deportation sounds severe, it is a procedure against which one can appeal. Illegal entrants can be simply walked off site and onto a plane. The business discontinuity costs of this could be severe, and worse still your client could face a fine of up to £20,000.00 per worker.
So what does this mean to you…………..
As a Recruitment Agency, your contract with your clients will probably leave you with liabilities in the above circumstances. The new White paper on regulation of the private recruitment industry contains clauses which, if implemented, would force you to establish a Candidate’s right to work in the UK before sending their CV to a client, and if the Candidate did not have a right to work in the UK, this would need to be stated on the CV.
Don’t forget though, that you can’t advertise a role seeking only those Candidates who have the right to work in the UK. If you want to know why, please do not hesitate to contact me, Lucy Tarrant on 0333 400 4499 or lucy.tarrant@cognitivelaw.co.uk, to find out more.