Work Permits Briefing

About this Briefing: The Ethnic Minorities Law Centre

June 2003
This briefing has been produced from the presentation given by Aaliya Seyal of the Ethnic Minorities Law Centre, to a recent meeting of UNISON Scotland's Overseas Nurses Network. It was agreed that the information presented should be published as a briefing for all branches to assist in supporting and organising workers in Scotland who are from overseas.

Work Permits

Work permits are legal documents applied for by UK based employers who wish to employ people who do not have an automatic right to work in the UK (this is people who are not citizens of the UK or the European Economic Area and are not entitled to work here). The employer must apply for a work permit for an employee before the employee can start working for him/her.

To apply for a work permit the employer should contact Work Permits UK which is the Home Office's Immigration and Nationality Directorate which administers work permits.

A work permit is normally granted for a length of contract and a visa is granted in line with the length of the work permit up to a maximum of five years.

Rights of Work Permit Holders

Work permit holders have the same rights of employment as any other worker. The work permit does not alter any contract of employment or employment right. This means that work permit holders are entitled to:

• wage slips
• P45 when leaving employment
• P60 at the end of the financial year
• Statutory annual leave - 4 weeks paid, in the first year of employment this would be calculated on a pro-rata basis as for any employee.

During the validity of the visa / work permit the holder may travel abroad for holidays without needing a fresh visa to return to the UK. However individuals should take a copy of their work permit with them in case the Immigration Officer requests sight of it on entry back into the UK.

Work Permits and the Employer

The Employer does not have the right to retain the passport of the work permit holder or the actual work permit. Employers have to retain copies for their own records, but the original documents are the possessions of the work permit holder not the employer.

Work permits are not transferable. They are issued to allow an individual to work for a particular employer. If a work permit holder wishes to change employment, the new employer must seek permission from Work Permits UK before they can employ the individual. An individual is unable to start employment with the new employer until permission is granted.

A condition of granting a work permit to an employer is that an appropriate wage for the job be paid. An employer who pays wages that are substantially lower than the industry-wide average may be acting in breach of an undertaking provided to Work Permits UK. Work Permits UK will receive complaints from workers who are being badly treated by employers and can take action against the employer. However it is important to consider all possible implications for the worker, including the fact he or she could be dismissed. The TUC suggests seeking advice from an experienced legal advisor on such issues.

Family and Partners

The spouse or unmarried partner may qualify under immigration rules to join the work permit holder in the UK. The partner must satisfy the Home Office that they are in a relationship with the work permit holder, they intend to live together, can be maintained and accommodated without resorting to public funds (see definition below) and the partner does not intend to remain in the UK longer than the work permit holder. Unmarried children under the age of 18 may also be admitted to the UK.

Families are expected to apply for entry clearance prior to their arrival in the UK at the British Embassy, High Commission or Consulate in their normal country of residence. Proof of work permit will be required. In a country where there is no British Embassy, Commission or Consulate individuals visas can be obtained from a mission designated to accept applications on that country's behalf. Information on visas can be obtained from the Home Office or Foreign and Commonwealth Office.

Persons admitted as family members are free to take up employment without seeking permission or requiring work permits. They will not be able to access public funds. Provisions have been introduced in extension of work permit applications for family member to be listed as dependants, and a separate application form is not required.

Work permit Time Limits

To extend the work permit the employer must complete form WP1X. This must be done before the current work permit and visa expire. An employee can continue to work while the application is being considered as long as the extension was applied for before the expiry of the work permit or visa.

After four years continuous employment on a work permit the work permit holder may apply for indefinite leave to remain in the UK provided s/he is still required for the job. An application has to be completed, together with proof the applicant is still required for the job, and various other documents including proof of employment for 4 years, so it is important individuals keep their P60 slips.

Periods of unemployment or employment without a work permit will not be counted towards the 4 year period. Short periods between jobs of up to 3 months will probably not count against continuous employment, and short holidays abroad will be disregarded.

Public Funds

Work permit holders and their partners and children are not allowed to access public funds. This means:

• Housing under Part VI or VII of the Housing Act 1996 and under Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1987, Part II of the Housing (Northern Ireland) Order 1981 or Part II of the Housing (Northern Ireland) Order 1988.
• Attendance allowance, severe disablement allowance, invalid care allowance, and disability living allowance under Part III of the Social Security Contribution and Benefits Act 1992, income support, Child Tax Credit, Working Tax Credit, council tax benefit, disabled person's tax credit and housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; or income based jobseekers' allowance under the Jobseekers Act 1995, (and the equivalent legislation for Northern Ireland).

Issues for UNISON

More and more workers from overseas are coming to work in Scotland. They have problems and issues that need addressing in the workplace, as well as advice and support on citizenship and other matters.

It is important that UNISON is able to assist these workers, and organise and support them. Branches can ensure that any overseas workers are not being exploited and are aware of their workplace rights.

Overseas Nurses Network

UNISON Scotland's Overseas Nurses Network was launched in December 2002 following the work of Sofi Taylor of the Glasgow Health Branch and Branch Administrator Sheila McGeoch. The Network provides an opportunity for overseas health workers to meet, access information and support, and develop organisation to meet the needs of overseas workers.

Further Information:

UK Work Permits:
www.workpermits.gov.uk

The Home Office
www.homeoffice.gov.uk

UK visas website (for information on visa requirements) www.ukvisas.gov.uk.

UNISON Scotland's Overseas Health Workers Pages:
http://www.unison-scotland.org.uk/nhs/
overseas/index.html

Department of Health Guidance for International Nurses:
www.doh.gov.uk/international-nurse/

The Ethnic Minorities Law Centre:
www.emlc.org.uk
Tel: 0141 204 2888

The TUC
www.tuc.org.uk

Contacts List:

Diane Anderson:
diane.anderson@unison.co.uk

@ the P&I Team
UNISON House
14 West Campbell St
Glasgow
G2 6RX
Tel: 0845 355 0845
Fax: 0141 221 8953

www.unison-scotland.org.uk

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