Immigration

Introduction

As a New Zealand lawyer your right to live and practise in the United Kingdom depends on your immigration status. Because of the provisions of section 8 of the Asylum and Immigration Act 1996 employers will be sensitive to your eligibility to work so you must include your immigration status on your CV. You are most likely to fall into one of the following categories: (a) EU passport holder; (b) NZ citizen with right of residence in the UK; (c) NZ citizen under 27 with a working holiday visa; (d) NZ citizen over 27 on visitor's visa. Residence and employment is generally permitted in categories (a) and (b), and is generally prohibited in (d). The most problematic of the categories is (c); all the more so because a significant number of young New Zealand lawyers obtain entry to the UK on this type of visa.

If the only entry option available to you is (c) and/or you wish to practise in your chosen profession in the United Kingdom, it is important that you familiarise yourself thoroughly with the limitations of a working holiday visa to ensure you live and work legally in the UK, well before entering the United Kingdom. Failure to comply with the Immigration Rules renders both the employer and the employee liable to serious penalties. Importantly, at your point of entry (or re-entry) into the United Kingdom an immigration officer may question you about the type of work you intend to undertake (or you are undertaking), and has the right to refuse you (re)entry if he suspects that you intend to carry on (or that you are carrying on) your profession in the UK.

The obstacles preventing you from pursuing your career if you are in category (c) may be circumvented provided a work permit is obtained by a prospective employer. The process of obtaining a permit is not complex; the principal difficulty will be in finding an employer who will be prepared to go to the trouble of invoking the process. The following sections attempt to give you some basic guidance to the law and practice that may affect you. If you need further assistance please contact Michael Reason, [T (004420) 7253 2404; F (004420) 7253 0760] one of our members who has considerable expertise in immigration law.

The law and practice relating to working holidaymakers/applicants for work permits

Working holidaymakers are regulated by the Immigration Rules (HC395) and Immigration Directorate Instructions (the guidelines that immigration and visa officers follow). Work permits are regulated by the Department for Education and Employment (DfEE). The passages underlined below will take you to the key sections of the Immigration and Nationality Directorate and DfEE websites.

The working holiday visa

Pursuant to rules 95-100 of the Immigration Rules Commonwealth citizens aged between 17 and 27 are permitted to come to the UK for up to two years on a working holiday. You must obtain entry clearance for such a visa from the British High Commission before arrival in the United Kingdom.

The type of work you may obtain whilst on a working holiday is governed by a variety of sources. Rule 95(vi) prescribes:

"The requirements to be met by a person seeking leave to enter the United Kingdom as a working holidaymaker are that he: (vi) is intending to take employment incidental to a holiday but not to engage in business, provide services as a professional sportsman or entertainer or pursue a career in the United Kingdom; ..."

Official guidelines as to the interpretation of the above rule are contained in Paragraph 1 and Annex C of the Immigration Directorate Instructions. Paragraph 1 states:

"1....The working holidaymaker scheme allows young Commonwealth citizens to come to the United Kingdom for an extended holiday (up to a maximum of 2 years) which they may fund by taking work here, provided such employment is incidental to the holiday."

Annex C states:

"2.1. Intention to work

A working holidaymaker should come to the United Kingdom with the intention of taking work here as part of his holiday. If he does not intend working or has no reasonable prospect of obtaining the type of work envisaged then he will be unlikely to meet the requirements of the working holidaymaker rules. While a working holidaymaker may engage in work incidental to a holiday here he is prohibited from engaging in business or pursuing a career, and is also prohibited from providing services as a professional sportsperson or entertainer (see paragraphs 2.4. and 2.5. below). It is inappropriate for a person whose specific purpose in coming to the United Kingdom is to take full-time work to be admitted as a working holidaymaker. [Emphasis added]

2.2. Work incidental to a holiday

As a general rule of thumb this should be considered to mean engaging in full-time work for 50% or less of the working holiday. Full-time employment should be taken to mean employment for more than 25 hours per week. A working holidaymaker may, however, engage in part-time work for more than 50% of his holiday provided it is clear that he will have a holiday.

2.3. Professional/Vocational work

A person coming for the purpose of a working holiday should not engage in work which represents the continuation of his career whilst here. A person established or qualified in a profession or vocation overseas and who intends to take up a post or appointment in the same field in the United Kingdom should normally be required to obtain a work permit. This need not, however, rule out all professional activity and it may be acceptable for a working holidaymaker to engage in, for example, supply teaching at a relatively junior level or agency nursing. Working on a temporary basis in a profession allied to medicine, as an occupational therapist, physiotherapist, speech therapist or radiographer is also allowed. The entry clearance officer should, however, have regard to the length of the contract and the commitments involved in the work undertaken. A working holidaymaker should not take up managerial positions or act as a locum hospital doctor, GP, solicitor, barrister etc but work as a locum vet is allowed." [Emphasis added]

The guidelines prohibit a New Zealand category (c) solicitor from practising his/her profession; even work as a paralegal may infringe the rules, depending on the length of the contract, the commitments involved in the work, and any other factors relevant to the above guidelines. Accordingly you must give the most careful consideration to these issues if you pursue any law-related employment.

Work Permits

The above obstacles may be circumvented provided a work permit is obtained by a prospective employer. The process of obtaining a permit is not complex; the principal difficulty will be in finding an employer who will be prepared to go to the trouble of invoking the process. Obviously you should familiarise yourself thoroughly with what is required so that you may be in a position to assist any prospective employer with information about the procedures involved, and to assuage his/her concerns about the potential problems involved etc. You should read (a) the work permit section of the Immigration and Nationality Directorate website and (b) the material sections of the Department for Education and Employment (DfEE) website, as work permits are granted to employers by DfEE, not the Home Office.

Obtaining a work permit: the relevant criteria

An employer seeking to engage you on a work permit must be able to satisfy the criteria set by the Department of Employment. You would be expected to be a "keyworker," defined as "overseas nationals having technical or specialised skills and expertise essential to the day to day operation of the company". Amongst the requirements are the following:

(a) the worker from abroad will not be taking a job which is being done, or could be done by anyone already permitted to work in the UK or by an EEA national (the 'resident labour' test)

(b) the job must be one requiring a recognised degree or equivalent professional qualification, or senior executive or administrative skills;

(c) the prospective employee must usually have had at least two years work experience, normally abroad, in a similar job to that for which the permit is now being requested. The DfEE requires original written proof from previous employers and the same proof of academic qualifications.

(c) people in the UK as students or visitors will not normally be permitted to change work permit approved employment.

(d) experience gained in the UK illegally, or while in the UK temporarily under the Home Office permit-free category, for example as working holidaymaker, will not normally be considered;

(e) there must be a genuine vacancy,

(f) generally the worker must be an employee and not a self-employed consultant,

(g) the job must normally be advertised in the last six months in appropriate newspapers or professional or trade journals which are also available in the EEA (both of these for key worker jobs), with at least four weeks allowed for response.

Other Points

The form to be completed by the employer requires evidence of all the attempts made to find someone already allowed to work, including copies of the advertisements, details of response to them, including, how many respondents were EEA nationals, and explanations of why the other applicants were not suitable.

The DfEE states that the applications will normally be decided within six to eight weeks, but if another government department is involved it may take longer. Invariably the prospective employee has to be outside the UK while the employer is applying for the work permit. The permit, if granted by DfEE, is sent to the employer who then forwards it abroad. The employee presents the permit on entry to the UK, to obtain the requisite status.