Articles

Abroad view of recruitment

Release Date:	17 October 2006
Author:	Jennifer Lambe

Immigration is now seen as a privilege and not a right - but can the UK recruitment market afford to do without the inbound talent of foreign professionals? Jennifer Lambe says the right advice at the right time can prove invaluable.

The recruitment world is all about finding the right person for the right job, which can be tricky at the best of times. But what if the ideal candidate is not a UK national? How do you know whether you can recruit them? If they do not have permission to work here already, what can you do about that?

Many companies shy away from even considering candidates outside of the European Economic Area (EEA), but there are a number of ways that a person may be granted permission to work in the UK. However, with criminal liability attaching itself to companies and their directors who employ people illegally, it is extremely important that you know who is already entitled to work, or who may most easily gain permission to do so.

If a candidate has a UK or EEA passport, an endorsement of indefinite leave to remain, an ancestry visa, or a ‘spouse’ visa, then permission for them to work is already implicit. But it is the less clear-cut categories that require special navigation.

• Work permits attach themselves to companies or employers and not to the overseas national, and candidates may only work for the specified company in the stated position. It is important to note that recruitment agencies are not allowed to apply for work permits for candidates that they wish to place in positions, even where the need for that person’s skills can be easily demonstrated.
• The highly-skilled migrant programme (HSMP), although rigorously scrutinised by the Home Office, is the most flexible of all the working permissions granted by the UK Government, as it allows an overseas national to come to the UK for the purposes of finding work and allows them to take up any position, once here, which reasonably requires their skills and experience, without any further permission being required - until their leave to remain is ready for renewal.

• The concession for foreign lawyers is a special policy to allow overseas-qualified lawyers to come to the UK to establish a practice, or join an existing practice at partnership level, where the remuneration is through a share of the profits in the practice. Candidates eligible for this may also qualify under the HSMP category, which permits ‘employment’ as well as ‘self-employment’).
• There are many young Commonwealth nationals in the UK under the working holiday maker (WHM) scheme, enjoying the permitted two-year working holiday. Under the rules of this visa they may only work for half their time in the UK (one year full-time or two years part-time); however, after a year here in this category, they may be permitted to be the subject of a work permit application - but the ‘switching’ rules apply (see below).
• ‘Switching’ can be one of the most problematic aspects of immigration applications as often, even if someone has lived here for a couple of years in another category, they are not permitted to remain in the UK and ‘switch’ into a different immigration category. Instead they are forced to return to their home country to obtain the relevant entry clearance at the British Embassy or Consulate in order to return to take up their post. For nationals of countries where visas are not usually required for them to visit the UK, special tactics can be applied to obviate this necessity, if an applicant is required urgently.
• Overseas national students are permitted to take employment of up to 20 hours per week during term time and full-time during holiday periods. Students who complete a degree in the UK may be permitted to switch ‘in-country’ into the work permit scheme, without the need to return abroad and seek entry clearance from their home country.
• Dependants of, for example, work permit holders, highly-skilled migrants and sometimes even students are often permitted to work in the UK (ironically) on a more flexible basis than the principal applicant on whom they are dependant. Dependants may not, however, switch into another immigration category to become a ‘principal’ in their own right without first leaving the country and obtaining the requisite entry clearance from abroad.

There are changes afoot at the Home Office and a complete overhaul of the immigration system has been promised for some time, with the anticipated date for implementation being “in 2008”. The essence of what qualifies a person to come and work in the UK is unlikely to change, but already more emphasis and obligation has been placed upon employers to take more responsibility in respect of their foreign national employees, even after they have left their employ. Immigration is now seen as “a privilege and not a right” - but can the UK recruitment market afford to do without the inbound talent of foreign professionals? The right advice at the right time can prove invaluable.

Jennifer Lambe is a senior associate in the immigration department of Mishcon de Reya.