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Friends from afar

28th April 2005, Page 34
28th April 2005
Page 34
Page 34, 28th April 2005 — Friends from afar
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Which of the following most accurately describes the problem?

Foreign drivers can help fill our skills gap — but they must be the right sort

of foreigners. Jonathan Exten-Wright and Sarah Hellewell explain.

Irrespective of the business sector concerned, whether or not a worker from overseas can be employed depends on the nationality of the worker.

If the prospective employee is from the European EconornicArea,which is made up of the 25 member states of the European Union plus Norway, keland and Liechtenstein, the worker is free to come to the UK to seek or take up employment without first obtaining a work permit. If the worker wishes to stay longer than six months he may apply for a residence permit.

The government is currently operating a Workers Registration Scheme to monitor the participation in the UK labour market of workers from the Czech Republic, Estonia, Hungary. Latvia, Lithuania. Poland. Slovakia and Slovenia. Any employer who recruits a person from one of these countries must ensure that the employee registers with the Home Office.

Non-EEA nationals are subject to immigration control and must obtain work permits in order to be able to take up employment in the UK. Permits are normally issued only to individuals who have specified skills.

If an employer wishes to employ a foreign national he must first apply for a work permit on his behalf.

There are two main types of application:Tier One and Tier Two. Applications should be made on FormWP1 which is available on www. workingintheuk.gov.uk General criteria: • A genuine vacancy exists • There is no suitable resident labour available to fill the post offered • The employer has made adequate efforts to find a worker in his own country or from other member states of the EEA • The application is for a named worker for a specific post • The person applying for the job is suitably qualified or experienced. Tier One Applications can be used if the post meets the skills criteria and one of these conditions: • An employee of a multi-national company is transferring to a skilled post in the UK • The post is at board level *The post is new and is essential to a company's inward investment • The post involves an occupation which is recognised by the Work Permits Agency as being in short supply.

Tier One applications do not need to be supported by any evidence of educational qualifications or references, and jobs need not be advertised in advance.

Tier Two Tier Two applications are standard work-permit applications requiring proof of qualifications and experience,evidence of employment history and details of a recruitment search. For Tier Two applications an employer must: • Consider if the vacancy can be filled by the promotion or transfer of an existing worker *Advertise a vacancy in the local and national press and in the appropriate trade and professional journals — the publications used must be available throughout the EEA • Send copies of any advertisements with the application for the permit and give details of the results of such advertising.

An asylum seeker must apply for specific per mission to work from the Home Office. Before employing an asylumseeker an employer should ensure that the official documentation has been stamped showing permission to work.

An employer has a defence against prosecution if he checks that the potential employee is in possession of one or more of a range of documents. These include: • A passport confirming that the person is a British citizen • An EEA passport or identity card which shows entitlement to live and work in the UK • A birth certificate for the UK • An application registration card issued by the Home Office to an asylum seeker stating that the holder is permitted to take up employment in the UK.

However, this defence is not available if the employer had actual knowledge that it would be an offence to employ the individual concerned. Further guidance is contained in the Home Office booklet Prevention of Illegal Working —Guidance for Employers.

You should keep the copy document while the employee is working for you and for at least three years after he has left your employment.

It is a criminal offence to employ a person who is subject to immigration control and does not have permission to live or work in the UK. Prosecutions will be dealt with in the local magistrates Court. The maximum penalty which will be available to the Court in relation to each charge is a Level 5 line (currently up to f5,000).

An employer can be charged in respect of each person being employed illegally.The court will set the fine taking account of the seriousness of a particular offence and the financial circumstances of the employer. It may take account of previous convictions in deciding the seriousness of the current offence. • Jonathan Exten-Wright is a partner and Sarah Hellewell is a professional support lawyer in the Employment department of DIA Piper.


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