Peril in the work permit minefield

Work permit gaffes could get your CEO sent down, warns Kamal Rahman.

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

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