Work permit gaffes could get your CEO sent down, warns Kamal Rahman
When Dutch investigators suspected that a global IT company was
guilty of work visa abuse in Holland, they arranged for the
managing director of its UK-based parent company to be arrested by
British police and detained by the UK government, pending his
extradition to Holland to face charges.
Visa abuse is not a civil offence, but a crime. Thus it was that
Sentil Kumar, the UK-based managing director of i-flex, found
himself detained for more than a week in Brixton Prison.
Last week, the UK government threw out the Dutch extradition
request because it deemed there was not sufficient evidence, and
Kumar now walks free - at least in the UK.
The i-flex affair raises a number of alarming questions for UK IT
directors, many of which stem from the vague and seemingly
contradictory way that work permit legislation is drafted. Not
least of these is how to avoid making the career-limiting gaffe of
having your chief executive clapped in irons.
When is a visit not a visit?
The i-flex case highlights the difficulties of defining a "business
visit". In the UK, the distinction between what amounts to
"transacting business" - permitted under a business visitors visa
(BVV) - and "work" - which is entirely illegal under a BVV - is, to
put it mildly, a grey area.
The official guidelines as published by the Home Office state, "It
is not possible to give a comprehensive list of approved types of
business," but they endeavour to provide some general
examples:
l"Representatives of computer software companies coming to install,
debug or enhance productsÉ or to be briefed as to the requirements
of a UK customer."
l"Advisers, consultants, trainers, trouble-shooters etc, provided
they are employed abroad."
However, the guidelines add, "The provision of a service involving
the use ofÉ expertise to make a detailed assessment of a potential
customer's requirements amounts to consultancy work for which a
work permit is required."
This seems to suggest that on a BVV it is OK to have someone come
over and do a quick and dirty fix, but if you want them do it
properly, then they had better have a work permit.
The guidelines conclude by stating that discretion may also be
exercised to allow a person to enter for business purposes "which
might arguably involve the provision of a service".
Confused? If so, you are in good company. Four well-known players
in the Indian IT sector have all recently urgently reviewed staff
operating in the UK under BVVs. Most do not want to rely on Home
Office "discretion" to get them out of Brixton Prison.
In the UK, work permits were, until recently, issued freely to
qualifying IT professionals. The past two months have seen a
significant practical tightening up of the work permit process.
From a regime where not even proof of academic qualifications was
required, now rarely is an IT company able to secure work permits
without submitting detailed business plans, contracts for services,
employer's liability insurance certificates and evidence of trading
activity.
The danger is that trying to take a short-cut could land you in hot
water. The irregularity of which i-flex was accused was that it had
allegedly applied for BVVs for staff for whom it had also applied
for work permits, pending work permits being issued.
So what are you to do to make sure you don't fall foul of the
law?
Be aware
Although "transacting business" is permitted under a BVV,
"undertaking work" - paid or unpaid - is strictly prohibited. You
may not wish to rely on Home Office discretion to interpret the
difference for you after the event.
Criminal liability
Criminal liability attaches to senior managers or directors of a
company who employ staff without immigration consent to work in the
UK.
Be patient
Having applied for a work permit, do not then arrange a BVV for the
same person or people.
Fast-tracking applications
There are ways of fast-tracking applications to overcome delays.
For example, companies working throughout Europe may consider using
the Vander Elst principles. This decision of the European Court of
Justice allows, subject to conditions, employees to be transferred
to other European operations of the same company for a temporary
period.
Kamal Rahman is a partner at law firm Mishcon
de Reya