UK: Employment of Non EEA Nationals in the UK

Last Updated: 1 August 2001

Individuals who are not nationals of the European Economic Area will need specific permission to work in the UK, in the absence of any other right to live and work here. This permission will normally take the form of a work permit issued by Work Permits (UK) (the government agency known as the Overseas Labour Service until April 2001). This briefing aims to give an overview of the work permit system and to look briefly at some of the other categories of entrant within the Immigration Rules which may be an alternative to obtaining a work permit.

The Work Permit Scheme

Applications for a work permit are made by the UK employer to Work Permits (UK) on a standard application form. There is currently no charge to submit an application but Work Permits (UK) have indicated that they are looking into the issue of charging and that a fee may be introduced in 2002. A work permit will be required even where the employee in question continues to be paid in his/her home country and continues to have a contract of employment with the overseas employer. Work Permits (UK) currently states that most applications will be decided within one week of receipt of all the relevant information but it is advisable to allow several weeks in case of further queries or requests for information. Their stated aim is to deal with all applications in days rather than weeks by the end of 2001. Supporting information such as the UK employer’s latest report and accounts will be required where the UK employer has not made an application before. The potential employee should not enter the UK whilst the application is pending and, generally speaking, if already in the UK in some other capacity e.g. as a visitor should leave the UK until the application has been decided. If a work permit is issued, the employee can then enter the UK with the original permit and his/her passport will be stamped with leave to remain in the UK for the length of the permit by the immigration officer on entry.

Work permits are only issued for positions requiring high-level skills. Permits are not normally issued for example for clerical or secretarial positions. The employee for whom the permit is sought must have one of the following:

  • A UK degree level qualification;
  • A Higher National Diploma (HND) level qualification which entitles the individual to do a specific job e.g. medical laboratory technician;
  • A general HND level qualification PLUS one year’s work experience doing the type of work for which the permit is sought; or
  • High level or specialist skills for at least three years.

Permits are not normally issued for individuals who have a significant shareholding in the UK company though shareholdings of up to 10% may be permitted where the shares were awarded to the individual as part of a pay package linked to their employment.

An important factor in any application will be whether the UK employer will have to produce evidence that no resident (i.e EEA national or individual with settled status) worker would be displaced by the employment of the overseas national. For applications involving:

  • an inter-company transfer (eg a transfer from a US parent to UK subsidiary),
  • a Board level appointment where there is no suitable candidate in the UK,
  • a post essential to significant inward investment or
  • an application for a "shortage occupation" (a pre-determined list of these is available),

this evidence is not required. For all other applications the UK employer would need to submit details of the steps it had taken to recruit from the resident labour force – this would usually be done by way of advertising the position but the use of headhunters may be acceptable. The advertisement, which must have been placed in the last six months, must have been in an appropriate place, usually in a UK national newspaper with EEA circulation or an appropriate professional journal available throughout the EEA. Following the advertisement the UK employer would be expected to have followed a normal recruitment process e.g. to have shortlisted the candidates, interviewed those on the shortlist and be prepared to give reasons why those who applied were not suitable for the job.

Work permits can be issued for up to five years though the period requested will have to be justified in the application. After 4 years’ continuous residence in the UK as a work permit holder, the individual is entitled to apply for indefinite leave to remain in the UK (also known as settlement) which entitles the individual to live indefinitely in the UK and work/change jobs without any further permission.

In the event that a work permit is refused there is no formal appeal but the UK employer can request reconsideration of the decision.

There is a separate scheme for permits for training and work experience. Permits for training are only issued where the training leads to a recognised qualification. Work experience permits are short term permits Both permits are normally issued on the understanding that the individual will not be permitted to change to work permit holder status at the end of the training/experience and will be expected to return to his/her home country for a period of time before being eligible to return to work in the UK again.

Other business related categories under the UK Immigration Rules

Other methods of entering the UK to work include the following. All these types of application require the individual to apply for prior entry clearance to the British post (embassy,consulate or High Commission) in the country in which he/she is living before coming to the UK.

  • Establishing a business

The requirements under this category include that the overseas national has not less than £200,000 of his/her own money in his/her own name (and not in an investment trust or other vehicle) to invest in the UK business and that he/she will be actively involved full time in the business. He/she must have either a controlling or equal interest in the business, the level of financial investment must be proportionate to the investment in the business and he/she must be able to bear his/her share of the liabilities. There must be a genuine need for the investment. If it is a new business which is being set up, the applicant must show that it will create full time paid employment for at least two persons already settled in the UK.

  • Sole representative

This category is for representatives of overseas firms which have no branch, subsidiary or other representative in the UK who wish to set up such a branch/ subsidiary. The applicant must have been taken on as an employee outside the UK, intend to be employed full-time as the representative and the overseas business must have its principal place of business outside the UK. The representative must be a senior employee but not a majority shareholder in the overseas business. After an initial period the sole representative would be expected to show that he/she had in fact set up the branch/subsidiary.

  • Innovator

This is a new category introduced as a two year pilot scheme in September 2000 and which is aimed at entrepreneurs with new and creative ideas who want to set up a business in the UK. It is particularly aimed at the science and technology and e-commerce sectors. The usual rules regarding investing a set amount do not apply and the requirement that the money be the individual’s own money rather than for example from a third party does not apply. The basic requirements are that the business creates two full time jobs for people settled in the UK, the business must be a UK registered company in which the individual must hold at least 5% of the shares, the individual must be able to support and accommodate him/herself without further work or recourse to public funds and there must be enough money available to finance the business for the first 6 months. If these requirements are satisfied, the application is assessed on a points basis on the individual’s personal characteristics, the business plan and the economic benefits flowing from the business plan.

  • Highly skilled individuals

(expected later 2001)

A pilot scheme for this new category is expected later in 2001. The category is intended to catch exceptionally highly qualified Individuals (Phd level or equivalent) who can show a significant achievement in their field.

Dependants

As a general rule, the spouse and dependant children under 18 of a work permit holder or of an individual who has obtained entry clearance in one of the other categories set out above, are entitled to travel to and remain in the UK for the same period as the worker. There are also provisions allowing the long term partner of a work permit holder to enter and remain in the UK with the work permit holder in certain circumstances. Family members should apply for prior entry clearance to come to the UK as dependants to the British post in the country in which they are living before travelling to the UK.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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