Work Permit Policy: General Agreement on Trade in Services Amendments

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A decision made on 17 July 2020

MINISTERIAL DECISION REFERENCE: MD-HA-2020-0047
Decision Date: 13 July 2020
DECISION SUMMARY TITLE: Amendments to the Work Permit Policy: General Agreement on Trade in Services
DECISION SUMMARY AUTHOR:	Acting Director, Immigration & Nationality	IS THE DECISION SUMMARY PUBLIC OR EXEMPT? (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
REPORT TITLE: Work Permit Policy (General Agreement on Trade in Services: Mode 4)
REPORT AUTHOR OR NAME OF PERSON GIVING REPORT: (if different from Decision Summary Author)	Acting Director, Immigration & Nationality	IS THE REPORT PUBLIC OR EXEMPT (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
DECISION AND REASON FOR THE DECISION: The Minister for Home Affairs has approved amendments to the Work Permit Policy (“the Policy”) in relation to the employment of persons engaged in the supply of goods and services. The need to make amendments to the Policy arises because Jersey will be covered by the UK’s World Trade Organisation (“WTO”) membership from the end of the Brexit transition period. The General Agreement on Trade in Services (“GATS”) is a treaty of the WTO and Mode 4 relates to the supply of a service by a service supplier of a WTO member, through the presence of natural persons of a WTO member in the territory of any other member. Note that Mode 4 covers only temporary entry and stay in a member’s territory to supply services; it doesn’t cover access to the labour market or measures regarding citizenship, residence or employment on a permanent basis. This means that once WTO membership applies to Jersey, at the end of the transition period, the Policy will need to be consistent with the UK’s WTO Mode 4 commitments in relation to the following: Contractual service suppliers This refers to persons employed by a company with no commercial presence in the EU under a contract to supply services in Jersey as set out in the GATS or a similar trade agreement; and the detailed criteria (which are the same as in the UK) are shown in the attached report. Independent professionals This refers to self-employed persons with no commercial presence in the EU under a contract to supply services in Jersey as set out in the EU - CARIFORUM economic partnership agreement or a similar trade agreement; and again the detailed criteria (which are the same as in the UK) are shown in the attached report.
RESOURCE IMPLICATIONS: None as a consequence of this decision.
ACTION REQUIRED: Customs and Immigration Service to make the appropriate amendments to the Work Permit Policy referred to in the attached report and to come into effect on the day the Ministerial Decision is signed. In addition, information in relation to contractual service suppliers and independent professionals to be made available on gov.je.
SIGNATURE:			POSITION: Connétable Len Norman Minister for Home Affairs
DATE SIGNED:			EFFECTIVE DATE OF THE DECISION:

Work Permit Policy: General Agreement on Trade in Services Amendments

Justice and

Home Affairs

Customs and Immigration Service

Report

To: Minister for Home Affairs

Submitted By: Acting Director, Immigration & Nationality

Date: 13 July 2020

Subject: Work Permit Policy (General Agreement on Trade in Services: Mode 4)

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1 On 17 October 2019 the UK Foreign Secretary wrote formally to the World Trade Organisation (“WTO”) notifying them that the UK intended to extend the territorial scope of its WTO membership to Jersey and the other Crown Dependencies. Jersey will be covered by the UK’s WTO membership from the end of the Brexit transition period (currently set as 31 December 2020). This means that Jersey’s domestic arrangements will need to provide for the levels of market liberalisation which the UK has committed to offer to other WTO members in its WTO Schedules of commitments in relation to the supply of goods and services.

2 The General Agreement on Trade in Services (“GATS”) is a treaty of the WTO. It covers four modes of cross-border supply of services. Mode 4 relates to the supply of a service by one Member, through presence of natural persons of a Member in the territory of another Member.[1] The GATS does not apply to measures affecting access to the employment market of a Member, nor does it apply to measures regarding citizenship, residence or employment on a permanent basis. The UK’s GATS Schedule makes a number of specific liberalisation commitments in relation to Mode 4. Once WTO membership applies to Jersey at the end of the transition period, Jersey’s domestic legislation and arrangements that affect Mode 4 supplies of services must meet these GATS commitments.

3 Work permits are issued to employers when they meet the requirements of the Immigration (Work Permits) (Jersey) Rules 1995 [2] which are made by the Minister for Home Affairs and administered by the Customs and Immigration Service.

4 The Immigration Work Permit Policy (“the Policy”) needs to be consistent with the UK’s WTO commitments on modes of supply in respect of the trade in services. The changes proposed to the Policy are designed to ensure consistency with these Mode 4 commitments, and are based on the eligibility criteria for contractual service suppliers and independent professionals contained in the Home Office Tier 5 (Temporary Worker) of the UK Points-Based System guidance [3].

5 The new category in the Policy, under the heading of General Agreement on Trade in Services, would cover contractual service suppliers and independent professionals:

Contractual service suppliers
the employer must be based outside the European Union in a country or territory which is a signatory to the trade agreement under which they are supplying services and the employee must be a national of that country;
the person must have been an employee of the company for at least 12 months;
the person must have a degree level or equivalent level qualification, unless they are:
- supplying fashion model services, chef de cuisine services or entertainment services other than audiovisual services under the EU - CARIFORUM economic partnership agreement; or
- supplying advertising and translation services;
where required by relevant Jersey legislation, regulations or sectoral requirements, the person must hold any specific professional qualifications or registrations to provide the services in Jersey;
the person must have three years professional experience in the sector in which they are supplying services unless they are supplying chef de cuisine services under the EU – CARIFORUM economic partnership agreement, in which case, the person must have at least six years’ relevant experience at the level of chef de cuisine and have an advanced technical qualification; and
the maximum period for which a work permit can be applied for on the basis of a contractual service supplier is 2 years unless providing a service under the EU – CARIFORUM economic partnership agreement, the EU – Andean multiparty trade agreement and the EU European Union – Chile free trade agreement, when it is a maximum period of 6 months in any 12 month period.
Independent professionals
the business must be established on the territory of the country which is signatory to the trade agreement under which the person supplying services and must be a national of that country;
the person must have a university degree or technical qualification which demonstrates knowledge of a similar level;
where required by relevant legislation, regulations or sectoral requirements, the person must have specific professional qualifications to provide some services in Jersey;
the person must have six years professional experience in the sector in which they are supplying services; and
the maximum period for which a work permit can be applied for on the basis of an independent professional is 2 years.

6 Applicants who are granted immigration permission under these two new routes will remain subject to the requirements of the Control of Housing and Work (Jersey) Law 2012, as are applicants to every other immigration permission.

Recommendation

It is recommended that the Minister for Home Affairs instructs the Customs and Immigration Service to make the appropriate amendments to the Policy to include contractual service suppliers and independent professionals.

Acting Director, Immigration & Nationality

Official

[1] There are four modes of supply in respect of the trade in services that are protected by the WTO:

Mode 1 — Cross border trade: from the territory of one Member into the territory of any other Member

Mode 2 — Consumption abroad: in the territory of one Member to the service consumer of any other Member

Mode 3 —Commercial presence: by a service supplier of one Member, through commercial presence, in the territory of any other Member

Mode 4 — Presence of natural persons: by a service supplier of one Member, through the presence of natural persons of a Member in the territory of any other Member

[2] https://www.jerseylaw.je/laws/revised/PDFs/21.700.75.pdf

[3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/795425/Final_Tier_5_Temporary_Worker_Guidance_05-04-19.pdf