WORK PERMIT POLICY REVIEW 2007
PART ONE – PRESENT SITUATION
1. Background
1.1
The last major review of the work permit policy was in January 2003 when the Home Affairs Committee agreed to maintain the existing policy which broadly allows for two categories of work permit holders:
· ‘Unskilled’ workers in the hospitality and agricultural industries. Permits may be issued for no more than nine months.
· ‘Skilled’ workers who meet the criteria set out in the Immigration (Work Permits) (Jersey) Rules 1995. The practice has been to grant permits predominantly to professional persons at a reasonably high level in industries such as finance, law, information technology, and health. Due to serious shortages in the relevant areas permits have also been issued for chefs, nurses and senior hotel managers. Short term permits continue to be issued for visiting entertainers or for overseas staff coming to undertake special projects for brief periods on behalf of their overseas employer.
1.2
The policy was revised as from 01 May 2004 in the light of the enlargement of the European Union upon the accession of 10 new member States, prominent among which was Poland, which hitherto had been the largest source of persons on ‘unskilled’ permits.
1.3
From 01 May 2004 the grant of permits in the ‘unskilled’ category ceased with the exception that existing permit holders would continue to be allowed to return to their same employer on a seasonal basis.
2. Impact of policy since changes of 01 May 2004
2.1
As can be seen in the statistics at Appendix 1, the number of permits in the ‘unskilled’ category has shown a not unexpected decrease since then. This is the result of a combination of factors:
· Employees deciding not to return or not being required any further by their existing employer (in some cases because the employer’s business no longer exists).
· A small number of employees qualifying to return on a long term skilled basis, mainly as chefs.
· Some employees being refused permits when it has come to light that false references have been used to obtain permits.
2.2
The second largest national group of permit holders after Poles were Kenyans. From a peak of 330 permits issued to Kenyans in 2003 the number dropped to 136 in 2006 which included a number of instances where individuals had two permits within the space of the year.
2.3
The number of nationals arriving from the new EU States is difficult to ascertain accurately as of course they are no longer subject to permit control. However Social Security records early in 2006 indicated that some four and a half thousand Polish nationals were registered as in employment here. This is an increase on the number of permit holders who arrived in the last full year of permit control, 2003, which was 2518.
3. Interim reviews of policy
3.1
In July 2006 the Minister for Home Affairs gave consideration to the requests of the Jersey Hospitality Association that:
· 3 year permits be granted for front of house and other English speaking staff;
· the original scheme whereby unskilled overseas workers who have had appropriate training at a reputable and renowned catering establishment be re-introduced to allow more employees here under seasonal permits;
· the criteria for the employment of chefs be relaxed to allow chefs to take on more senior posts without having to have had three years experience at the higher level.
The Minister agreed that the last request be implemented but the first two were rejected. It was felt that the EU was a sufficiently large market place in which employers could meet their staffing requirements. With regards to English speaking staff it was felt that the hospitality industry could make greater efforts to recruit Commonwealth working holidaymakers or those with UK ancestry, both permit free categories.
3.2
In November 2006 it was decided that we had perhaps been a little too generous in granting short term extensions to seasonal work permit holders to cover Christmas periods to the extent that our generosity was being abused. Moreover seasonal permit holders were seeking to return very soon after the end of one permit resulting in them becoming effectively permanent employees. Consequently the Minister for Home Affairs agreed that:
· after December 2006 we would cease to extend permits beyond the nine month period;
· no employee would be permitted to work in Jersey for more than 9 months in any 12 month period.
Transitional arrangements were agreed with the industry to help them through the 2007 season before the tighter rules were enforced.
4. Further enlargement of the EU
Bulgaria and Romania became member States of the EU as from 01 January 2007. From that date nationals of these States gained the right of free movement within the EU but not necessarily the right to take employment. The UK introduced a work permit type scheme for Bulgarians and Romanians. However it was decided that locally we would not follow suit and that the Island could control the numbers of non-resident workers by means of the Regulation of Undertakings legislation. Moreover the prevailing legal view was that a permit control could not be imposed on the new member nationals unless it was also imposed on all other EU nationals including British citizens.
PART TWO – LOOKING FORWARD - RECOMMENDATIONS
5. General policy matters
‘Unskilled’ (seasonal) permits
5.1
The holders of seasonal permits, as has been mentioned above, will now be more tightly controlled and restricted to a stay of no more than 9 months in any 12 month period.
5.2
One matter which has been raised by employers of seasonal workers is their inability to promote workers and thus develop their permit staff in the way that as good employers they endeavour to develop other employees. If the employer wishes to promote the post-holder then it is an indication that there is no longer a requirement for a permit holder to fill the original post and therefore, perversely it might seem, the employee could be required to leave the Island and lose both his existing post and the promotion. Faced with this dilemma and rather than put loyal workers out of work, employers are not promoting able staff who in normal circumstances would be promoted.
5.3
A view expressed by the Population Office, recognising that this is not a matter on which they have a right to comment on, is that “seeking to balance economic growth and population levels, the issue of unskilled workers receiving minor promotions is not a feature, and indeed we would say that the economic benefit outweighed any potential downside (assuming no locals are available for the more senior post)”.
5.4
A work permit is by nature restrictive. The present policy is generous to the extent that it was decided that existing employees would be allowed to return to the post they previously occupied against the background that unskilled permit free labour is readily available. The inability to promote someone may be viewed as being the natural consequence of a work permit regime. It was anticipated that the decision not to grant any new seasonal permits would over a period of time lead to a natural reduction in permit holders. Allowing promotion will hinder this expected reduction in numbers. On the other hand the number of promotions is likely to be small and if confined to situations such as “waiter” promoted to “head waiter” then there is little gained by opposing such promotion. If promotions are to be allowed I would propose that they be subject to three provisions, namely that:
no local person is available to fill the post;
the post is strictly seasonal (9 months): and
the permit holder is only allowed one promotion.
Recommendation(a): To allow limited promotion for seasonal work permit holders in accordance with the provisions set out above.
‘Skilled’ permits
5.5
It is not proposed to expand the areas of employment for which skilled permits are currently granted. Normally they are issued for up to 3 years and in ‘exceptional circumstances’ (the term used in the Work Permits Rules) for up to 5 years. If a person is granted a 5 year ‘(j)’ category licence by Housing/Regulation of Undertakings then this is treated as exceptional circumstances and a work permit will normally be issued for the same period. After 5 years residence a permit holder may apply for indefinite leave to remain. If this is granted the person ceases to be under permit control.
5.6
Holders of 3 year permits often apply for an extension of leave. If the application enjoys the support of Regulation of Undertakings (in that the employer is to be allowed to continue to fill the post with a non-residentially qualified employee) and the normal work permit criteria continue to be met it is likely that an extension for up to 2 years will be granted. After working for five years under permit a permit holder is able to apply for indefinite leave. Therefore a number of long term permit holders will end up gaining indefinite leave to remain, thus adding to the permanent population of the Island. To that number must be added their dependants.
5.7
By way of comparison, it is interesting to note the different practices adopted in the UK and Guernsey. In the UK, provided a work permit holder continues in his employment, he can expect to be allowed to stay 5 years and then obtain indefinite leave. By contrast Guernsey adopts a hard line policy. A permit may be granted to a ‘key worker’ (similar to our ‘skilled’ worker) for no more than 4 years at the end of which the permit holder must return abroad. He is allowed to return on a new permit after an absence of 12 months but this is a rare occurrence. The exception to this policy is that a person granted a licence as an essential worker by the Guernsey Housing authority, which is generally valid for 15 years, will be allowed to stay for 5 years under permit after which they will be able to apply for indefinite leave. It is understood that only about 30 essential licences are issued each year, very few of which will be to persons subject to permit control.
5.8
Our local policy falls very much between that of the UK and Guernsey and this ‘middle of the road’ stand has met our needs to date. With the ongoing consideration of the States’ population policy it is even more essential now that close links are maintained between the Population Office and this department. Major changes to our policy should only be introduced as part of the overall population strategy once the detail of that is determined.
5.9
Following discussions between representatives from the Economic Development Department and Customs & Immigration it has been brought to our attention that the majority of ‘(j)’ category Housing licences are now granted on an unlimited time basis. This was in accordance with the report (R. 54/2006) presented to the States by the Minister for Housing on 20 June 2006. Well established businesses will in principle now be granted unlimited ‘(j)’ category consents. In those cases we will no longer be able to match the expiry of a work permit with the ‘(j)’category licence, though the issue of a ‘(j)’ category licence will still serve as evidence that the holder meets the economic benefit criteria which is considered before granting a work permit.
5.10
Of course not all persons who might qualify for ‘(j)’ category status apply for it as many simply take advantage of the availability of unqualified accommodation and the employer’s quota of non-Island resident employees. Thus the absence of a ‘(j)’ category licence does not mean that the economic benefit test for work permit issue has not been met. It does mean that we have then to decide if that test has been met as we do not have the ‘(j)’ category status to rely on.
5.11
It is desirable that a corporate stand is taken on the matter of non-Island residents seeking to work in Jersey and the change in the issue of ‘(j)’ category licences and the legitimate ability to circumvent the need for them poses a dilemma for this department. The simple solution is that we issue all long term permits for no more than 3 years at the outset. As we do now, at the end of the 3 years we will re-examine the employment situation and determine whether an extension of the permit is justified. In practice taking this line from now on will mean that by the time a person’s 3 years has expired a new population policy will be in place which we will then have regard to and therefore issuing 3 year permits is effectively a holding position. If we are charging extension fees, as recommended in this paper, employers might have cause to complain at the end of the 3 years that they are having to pay twice for the same thing. That is something that can be given further consideration to in due course and need not influence a decision now.
Recommendations:
(b) Long term permits to be granted for no more than 3 years in the first instance.
(c) Close links to be maintained with Population Office and future work permit policy to be considered within the framework of the population policy.
Dependants
5.12
The control of dependants of work permit holders does not come under the authority of the Home Affairs Minister. It is under the Directions of the Lieutenant-Governor that dependants of permit holders are granted leave to enter and remain here. One of the main criteria for the grant of leave to a dependant is that the permit holder has been granted a permit for more than 12 months.
This is a matter which does cause some problems. A fair number of non-seasonal permits are issued for exactly 12 months as this is a common contract period for workers. However, employees who uproot themselves for this length of time to come to Jersey, albeit not on a permanent posting, do generally wish to bring their spouse and young children. A permit for a year and a day would allow them to bring dependants, but one for just one year does not. This is felt to be an unnecessary restriction. It is therefore proposed, with the support of the Minister, to request the Lieutenant-Governor to make a minor amendment to the Directions to allow dependants to enter where a permit has been issued for 12 months or more, as opposed to ‘more than 12 months’.
Recommendation (d): That the Lieutenant-Governor be requested to make the proposed minor amendment to the Directions.
6. Fees
6.1
The power to determine permit fees rest with the Minister in accordance with paragraph 2(2) of the Work Permits Rules. No States approval or further legislation is required.
The current fees came into effect on 01 January 1999. The fees are:
For a permit up to one month’s validity - £10
Over one month but less than a year - £30
One year or more - £150
6.2
Experience has shown that the time spent processing a £10 permit is hardly less than that spent on the £30 permit. Both tend to be more straightforward than the long term permits. The £10 permit applies chiefly to entertainers and the £30 permit to returning seasonal workers. Other short term permits are regularly issued to finance and IT businesses who second employees from abroad for specific projects. As the policy is lenient towards short intra-company transfers these permits are also relatively easy to process.
Recommendation (e): That there is one fee for permits issued for less than 12 months.
Extension fees
6.3
To date no extension fees have been charged when the validity of a permit has been extended beyond its original expiry date. This does cause an anomaly and a degree of unfairness when, for example, an employer applies for a permit for say 10 months and then makes a good case for an extension of say 3 months. This gives a total period of employment of 13 months for the original fee of £30, whereas had a 13 month permit been applied for at the outset it would have cost £150. Moreover the process of granting an extension has caused the Service extra unpaid for work.
6.4
There is also the potential for deliberate abuse when, taking the above scenario, an employer has deliberately applied for a 10 month permit knowing that he has a reasonable chance of getting it extended beyond 12 months at no extra cost. The solution is to charge an extension fee, both to cover the cost of the extra work and to act as a deterrent to potential abusers.
6.5
It is proposed that requests for extensions be treated as applications for new permits. The use of the normal work permit application form for this purpose will make the process easier for both the employer and the Service.
Recommendation (f): That extensions of permits be treated as applications for new permits.
Fees increase
6.6
There has been no increase in the fees for eight years. The increase in the RPI index from Dec 1998 to Dec 2006 was 36.22%. Applying that increase to the current fees, ignoring the £10 fee, would raise the £30 fee to £40.86 and the £150 to £204.30.
6.7
It is difficult to calculate the real cost of issuing a permit. The resources of staffing, premises, IT systems and other office requirements are difficult to estimate. However, rounding the results, an increase from £30 to £40 and from £150 to £200 can be justified on cost of living grounds alone.
6.8
It is proposed that extension (‘new permit’) fees be as follows:
First permit - £40 – subsequent permit - £40, provided the total validity of consecutive permits is less than 12 months. If total validity 12 months or longer fee - £160.
First permit - £200 – subsequent permit - £200.
Recommendation (g): That the fees be increased to £40 and £200 and that the fees for subsequent permits be as set out immediately above.
NOTE: The recommendation to introduce extension fees and the increase in fees will it is understood require the approval of the Treasurer – refer to Financial Implications Section
Other fees issues
6.9
There is an anomaly at present in the way we charge for short term permits in respect of persons who already hold UK work permits or who otherwise have permission to work there. For example if a bank wants to bring over a work permit holder from the UK for up to 3 months, we have historically not required them to obtain a Jersey permit in addition. However we have not applied the same principle to say an entertainer on a work permit touring the UK.
6.10
In all cases we are dealing with employees who are working legitimately in the UK and for whom any necessary permit and visa fees will have been paid to the H.M. Government. To achieve consistency in our practice one option is always to require a work permit to be applied for. Another option is to have a permit waiver period of say one week. The impact of this would be that most entertainers would become permit free as they are rarely here for more than one night; other employees staying more than one week would require permits.
Recommendation (h): Allow persons legitimately working in the UK who would normally be subject to work permit control in Jersey to work in Jersey for up to one week without having to apply for a work permit. This would be subject to Immigration confirming status under UK Immigration law i.e. confirmation that the employee is performing the same role as he would in the UK and evidence being produced to show that the employee was legitimately in the UK.
7. Implementation
Recommendations (a) to (d) and (h) will be of immediate benefit to employees and employers and there are no good reasons why their implementation should be delayed.
Most seasonal employees are taken on in the first half of the year. A start date of 01 July 2007 for the fee increases will thus be of benefit to employers of seasonal employees in the hospitality sector as they will not face a fee increase until next year.
Recommendations:
(i) That Recommendations (a) to (d) and (h) be implemented from the date they are approved by the Minister.
(j) That Recommendations (e) to (g) come into effect from 01 July 2007 .
SUMMARY OF RECOMMENDATIONS
(a) To allow limited promotion for seasonal work permit holders in accordance with the provisions set out in this report. (Paragraphs 5.1 – 5.4)
(b) Long term permits to be granted for no more than 3 years in the first instance. (5.4 -5.11)
(c) Close links to be maintained with Population Office and future work permit policy to be considered within the framework of the population policy. (5.4 – 5.11)
(d)That the Lieutenant-Governor be requested to make the proposed minor amendment to the Directions. (5.12)
(e)That there is one fee for permits issued for less than 12 months. (6.1 – 6.2)
(f) That extensions of permits be treated as applications for new permits. (6.3 – 6.5)
(g) That the fees be increased to £40 and £200 and that the fees for subsequent permits be as set out in this report. (6.6 – 6.8) subject to the approval of the Treasurer of the States.
(h) Allow persons legitimately working in the UK who would normally be subject to work permit control in Jersey to work in Jersey for up to one week without having to apply for a work permit. This would be subject to confirmation that the employee is performing the same role as he would in the UK and to evidence being produced to show that the employee was legitimately in the UK. (6.9 – 6.10)
(i) That Recommendations (a) to (d) and (h) be implemented from the date they are approved by the Minister.
(j) That Recommendations (e) to (g) come into effect from 01 July 2007 .
John T. Noel
Director Immigration & Nationality
March 2007
Financial Direction 4.1 – Increases in States Fees and Charges, states that ‘Departments should when reviewing fees and charges, first thoroughly satisfy themselves that any increase is absolutely necessary and that there is absolutely no scope for either holding or reducing fees and charges through efficiency and productivity gains. There should be no presumption of automatic increases "in line with inflation" without this process having been demonstrably undertaken first.’
The changes proposed in the review reflect the time spent processing permit applications and will reduce the potential for abuse by employers while making the process easier for both the employer and the Service.
The Financial Direction also states that ‘the Anti-Inflation Strategy states that increases in States fees and charges should be limited to 2.5% per annum with compelling cases to be subject to the prior approval of the Minister for Treasury and Resources (previously the Finance and Economics Committee).’The Minister for Treasury and Resources has delegated the approval of fee increases in excess of 2.5% per annum to the Treasurer of the States where:
- requests do not need to be submitted to the States for their approval;
- requests relate to non-contentious issues; and
- departments are able to demonstrate that they are increasing charges in order to fulfil the "user pays" principle.
Given that that proposed increases are marginally in excess of the equivalent of 2.5% per annum approval of the Treasurer is required.
APPENDIX
WORK PERMIT STATISTICS 2003 TO 2006
Year | 2003 | 2004 | 2005 | 2006 | 4 year average |
SECTOR | | | | | |
| | | | | |
Agriculture | 791 | 334 | 0 | 0 | Not valid |
Entertainment | 163 | 225 | 75 | 45 | 127 |
Finance | 18 | 40 | 71 | 97 | 56 |
Hospitality | 2317 | 826 | 175 | 149 | Not valid |
IT | 1 | 11 | 18 | 26 | 24 |
Law | 5 | 2 | 13 | 10 | 7 |
Medical | 50 | 32 | 27 | 35 | 36 |
Others | 25 | 9 | 10 | 20 | 16 |
| | | | | |
TOTAL | 3370 | 1479 | 389 | 382 | Not valid |
Polish and Kenyan nationals – permits issued 2000 to 31.12.2006
| 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 |
Poles | 353 | 1329 | 2323 | 2518 | 935 | n/a | n/a |
Kenyans | 35 | 78 | 231 | 330 | 216 | 163 | 136 |
Notes
1. Polish nationals and Kenyans were specifically recruited for the hospitality and agricultural industries from the year 2000. The last full year for Polish permits was 2003.
2. From 01 May 2004 Polish nationals became permit free and the number of permits issued for that year therefore relates to the period 01 Jan to 30 April.
3. The policy in relation to ‘unskilled’ workers of only allowing previous employees to return to the same employer and of not allowing in new employees came into effect in 2004. As expected the number of seasonal Kenyan workers has declined since then.
4. The 2006 figures for Kenyans include 13 long term permit holders, 6 of whom are in the Finance sector and 7 in Hospitality.
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