The case of the white-collar illegal migrants

Work permits are not just paperwork to be completed later, discovers Ian Hunter

A lot can hang on a work permit, regardless of whether your business is footballing or information technology, particularly when a permit is needed every time an employee moves between countries.

Finding the right employee for the job can be a time-consuming exercise at the best of times. It is not made any easier when there is a skills shortage.

But the exercise can become even more frustrating if the employee does not have an automatic right to work in the UK.

Commercial pressures and tight deadlines tempt employers to set him to work immediately and sort out the paperwork later. Such an approach is risky as well as illegal.

Nationals from the European Economic Area (EEA), which covers the European Union countries, Norway, Iceland and Liechtenstein, are allowed to work in the UK without restriction.

The same rule normally applies to non-EEA workers who are married to EEA citizens where the EEA spouse is exercising the right to free movement.

One of the greatest frustrations for multinational companies providing a global service is the absence of a European-wide work permit.

Although the principle is well established under law that a company incorporated in one member state has the right to transfer employees, including non- EU nationals, for the provision of services in another member state, this principle has not to date been implemented in all member states, while in others, restrictive conditions of entry have been imposed.

Attempts are gradually being made to address this problem. The European Commission has recently proposed that non-EU citizens should be able to apply for a card which would be valid for 12 months allowing them to work throughout the EU, but a single European work permit still seems some way in the future.

Applications for work permits should be made by the worker's prospective employer. There are several categories of permission available, including training and work-experience permits. The most popular is the full work permit.

In broad terms, the employer must be able to satisfy the Overseas Labour Service of the Department for Education and Employment that there is no other person in either the UK or the rest of the EEA who is capable of doing the particular job.

The purpose of the work permit scheme is, where possible, to safeguard the resident labour market. It is usually necessary for any post to be advertised in the UK and the remainder of the EEA to show that there is no worker within this area capable of filling the position.

This requirement can be waived where the position is very specialised. The waiver covers senior board appointments, posts that are essential to attracting jobs and capital to the UK and occupations that are acknowledged by the relevant industry to be in short supply nationally.

The advertising restriction is also often waived when employees are brought to the UK on an intra-company transfer from overseas.

The common problem is that those involved on the operational side of a business are often not aware of the procedures that must be followed before a non-EEA national can be employed in the UK.

The employee is often given a start date and contract of employment, neither of which is conditional on obtaining a work permit.

A work permit application is then submitted in respect of the employee who may already be illegally working for the employer under the guise of a business visitor's visa.

A business visitor is entitled legitimately to carry out certain duties while in the UK, however, this does not stretch to working full time.

Another shortcut used by employers in a hurry is to filter its employees in through the Irish Republic. This is because once the employees clear Irish immigration controls there are no further checks before they enter the UK.

The temptation to take one of these routes is greater because the Overseas Labour Service may take four to six weeks to process an application.

The danger is that when the Overseas Labour Service comes to processing an application it may require evidence that the post has been advertised and that no suitable EEA nationals have been located. If this requirement is not satisfied the application could be rejected.

An employer may be left with an employee, lured by a generous relocation package, who can't be put to work in the position for which he was recruited.

This could lead to the employer dismissing the employee and having to pay substantial compensation.

All of this points to the importance of co-ordination between those making the recruitment decision and those responsible for sorting out the paperwork.

Fortunately, the Overseas Labour Service is pragmatic and helpful. It is willing to meet employers and their advisers to discuss prospective applications and to explain its current approach to implementing regulations.

This is particularly useful when an employer's future plans are dependent on receiving guidance as to whether it will be able to import the necessary expertise.

Obtaining work permits can be a frustrating process.

However, employers should bear in mind that it is an offence to employ workers who do not have the necessary authorisation.

Employers guilty of such an offence could be subject to a fine of up to pounds 5,000.

If handled the wrong way a potentially frustrating process could become both embarrassing and expensive.

Ian Hunter is a partner and employment law specialist with City law firm Bird & Bird and author of the 'Which?' guide to employment.