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In an increasingly competitive labour market, UK employers are casting their net ever-wider in an effort to recruit the best candidate for the job. For many, this means looking overseas for talent. Finding the right candidate, however, is only half the story. Navigating the UK immigration rules is the biggest challenge for many employers.

Employers who seek to recruit overseas professionals in the UK are faced with a bewildering choice of immigration categories through which workers can take up employment. But, they should beware of complacency. It is a criminal offence to employ a person who is subject to immigration control and has no permission to work in the UK, or who works for an employer in breach of their conditions of stay in the UK.

Employing EEA professionals

Most employers are aware that European rights of free movement enable European Economic Area (EEA) nationals to enter and work in the UK. However, Accession 8 nationals (including, among others, Polish and Czech nationals) are currently subject to a worker registration scheme. This registration must be sought within one month of commencing employment; the worker is granted a right to reside in the UK on application. But, to sound another warning bell: it is a criminal offence for an employer to employ an accession state national who is not registered in such a way.

Despite calls from some sectors of British industry for a continued ‘open door’ policy, it appears likely that Bulgarian and Romanian nationals will be subject to controlled access to the UK labour market on the accession of their states in January 2007.

Employing from outside the EEA

The UK employer must establish the overseas employee has acquired company knowledge
and experience

Employers who seek to employ workers from outside the EEA will need to bring in potential employees from one of several formal immigration categories. Most employers who aim to bring non-EEA nationals into the UK will need to apply for a work permit.

Work permits

A work permit application is made by the employer, which gives permission to employ an overseas national for a particular position. The work permit scheme is designed to protect the resident labour market. Employers must therefore meet certain criteria in order to gain the necessary permission. There are skills requirements, which may be satisfied by academic qualifications, suitable work experience, or a combination of the two. Permits are granted for up to five years.

Most applications are made on the grounds the employer has failed to fill a position with a worker from the UK and EEA labour market.

The key criterion here is that an employer gives proof that it has not been able to fill the position from within the EEA. It is required to present evidence of a recruitment search. This is usually done by placing advertisements in newspapers and professional journals. However, internet advertising is acceptable where the website is suitable for the employment sector.

The position is more straightforward if an employer is conducting an intra-company transfer or filling a ‘shortage occupation’, as no recruitment search is required for these particular scenarios.

You invest effort, time and money
in them and it’s all thwarted by bureaucracy

Terry Langdon, Gleeds

Workers who have been employed by an associated overseas company are able to obtain a work permit on transfer of their employment to the UK-based employer. The UK employer must establish that the overseas employee has acquired essential company knowledge and experience, which is necessary for the UK position. This is not a difficult hurdle to clear.

As an alternative route, the Home Office

has designated certain jobs as ‘shortage occupations’, mainly in the engineering and healthcare sectors, and work permit applications for these occupations are straightforward. However, at present, chartered surveying is not a shortage occupation.

Highly Skilled Migrant Programme

If a work permit application is not appropriate, but the employer has a particularly skilled candidate in mind, that candidate may be able to apply on an individual basis through the Highly Skilled Migrant Programme. This flagship scheme seeks to attract highly qualified overseas nationals to work in the UK and is centred on a points-based assessment system. Candidates earn points for academic qualifications, work experience and past earnings, and those with sufficient points will be able to reside and work in the UK. The government anticipated a modest level of interest on the introduction of the scheme, but it has been overwhelmed by applications. Accordingly, the process is moving quite slowly, and the refusal rate has also been high.

Business visas

There is no way to evade the immigration categories and, despite popular myth, the business visa is not particularly helpful. It will be insufficient for most workers as it allows only restricted activities and, crucially, does not permit employment within the UK. It is limited to six months. There is an obvious tension at the heart of government policy between a recognition of the economic benefits that immigration brings, and the political need to be seen to be controlling the influx of overseas workers. Whatever the nationality of the next prime minister may be, employers should brace themselves for further changes in this fluid area of government policy.