Playing away takes form

Ian Hunter gives a guided tour of the rules for obtaining work permits
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The Independent Online
A lot can hang on a work permit. Manchester United hopes that it will not be the English Premier League and the European Champions' League titles. The club's failure to secure a permit for the talented Brazilian international Celio Silva illustrates the frustration a potential employer can experience when the employee he needs does not have an automatic right to work in the United Kingdom.

The demand for foreign nationals is not restricted to footballers. The "year 2000" problem which threatens to plague many of the country's systems has generated a demand for IT specialists which can only be met, in part at least, by importing large numbers of specialists, from India in particular.

Commercial pressures and tight deadlines increase the temptation to set the employee to work immediately and sort out the paperwork later. Such an approach is illegal.

Nationals from the European Economic Area (EEA), which includes all countries in the European Union together with Norway and Iceland, may work in the UK without any restrictions. The same rule normally applies to non-EEA workers married to EEA citizens.

The employer is responsible for applying for the permit. There are a number of categories of permission, 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 Section of the Department for Education and Employment that no one in the rest of the EEA is capable of doing the job. The scheme's purpose is to safeguard the resident labour market.

Normally any post should first be advertised in the UK and the remainder of the EEA. The requirement can be waived where the position is very specialised. That covers senior board appointments, posts that are essential to attracting jobs and capital to the UK and skills acknowledged by the relevant industry to be scarce nationally.

A common complaint is that those involved on the operational side of a business are often not aware of the procedures that must be followed before a work permit is granted.

The employee is often given a start date and contract of employment, neither of which is conditional on obtaining a work permit. This is particularly likely to happen when the recruitment is done abroad.

Another temptation is to submit a work permit application 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 United Kingdom. However, this does not stretch to working full time for a prospective employer.

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 found. Otherwise the application may be rejected.

An employer may then be caught with an employee lured on the offer of a generous relocation package, who cannot be employed in the position for which he or she was recruited. This could lead to the employer dismissing the employee and paying substantial compensation. And flouting the rules may influence the Overseas Labour Service when vetting applications in the future.

Fortunately, it is a pragmatic and helpful organisation. The service is willing to meet employers and their advisers to discuss prospective applications and to discuss its approach, particularly useful when an employer's plans.

Obtaining work permits can be a frustrating process. However, employers should bear in mind that it is now 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 is capable of becoming both embarrassing and expensiven

Ian Hunter is an employment law specialist with the City law firm Bird & Bird.