Work and Residence Permits - establishment of working group

STATES OF JERSEY

WORK AND RESIDENCE PERMITS: ESTABLISHMENT OF

WORKING GROUP

Lodged au Greffe on 30th July 2010 by Deputy P.V.F. Le Claire of St. Helier

STATES GREFFE

2010   Price code: D  P.109

PROPOSITION

THE STATES are asked to decide whether they are of opinion

1. to agree that a working group of elected States members should be established to review and evaluate the merits of introducing a work permit  and  residence  permit  system  for Jersey  with  the  following terms of reference –

1. to consider  how  the  current  protection  of  employment legislation compares to other jurisdictions that have similar socio-economic conditions to Jersey, in particular Guernsey and the Isle of Man;
2. to consider when, and why, work permits would be required to be used in Jersey for non-qualified residents, and if it is thought  that  they  should  be  introduced,  prepare  clear guidelines as to the circumstances in which they should be introduced;
3. to ascertain how the current employment protection measures and housing controls compare with those of Guernsey and the Isle of Man as effective methods of protecting jobs for the residents of Jersey and whether or not there are benefits that could  be  gained  by  considering  the  application  of  similar controls in Jersey;
4. to compare rent control mechanisms in Guernsey and the Isle of Man, together with any appeals process, with the current legislation in Jersey;
5. to report on the possible future introduction of a system of restricting the purchasing of property in Jersey to residents of the Island, with the working group taking into account the following matters –

1. full  and  future  employment,  development  and advancement in employment for residents that have established backgrounds on the Island; by allowing them preference over non residents for job vacancies that arise whether they are in the employment or not of the company whose need arises;
2. the ability for the adult resident population and their children to have access to affordable housing and a reasonable standard of living;
3. the effect that work permits, as opposed to current methods,  may  have  on  immigration  and  the management  of  the  infrastructure  and  other  such related or similar topics as deemed necessary;

4. whether a work permit system could dovetail with a residence permit;
5. whether the proposed migration policy approved by the States in 2005 will, if implemented, achieve a fairer society or whether it will fail to meet the hopes and aspirations of residents in delivering a fair and sustainable society both environmentally and socially and, if so, why;
6. in what way the options identified by the working group could strengthen the migration policy agreed in 2005 or in what way they should replace the policy (if at all);

2. to request the Council of Ministers to provide adequate assistance and resources for the working group and to request the working group to update the Assembly on its work and conclusions at regular intervals.

DEPUTY P.V.F. LE CLAIRE OF ST. HELIER

REPORT

The population and immigration systems are on the near horizon!

I believe that our Island discriminates heavily against those that are born here of ordinary means and abilities.

It also discriminates against those that are of ordinary means that come here to better themselves in my view, by ensuring they are also competing, in an unfair way with new arrivals, in better financial circumstances securing homes because of the disparity of purchasing power that exists between them and other dominant groups. It was borne out today as I finished this report, where in an article in the Jersey Evening Post it referred  to  a  group  of  9 Portuguese  citizens  who  had  been  kept  in  qualified accommodation  against  the  standards  and  category  that  they  were  entitled  to  for unlawful gain by the landlord.

The rooms they lived in, whilst clean and homely, were cramped and the fire service was refused access to the premises.

The Court handed down a fine that was double that which was requested by the prosecution.

This not only took advantage of Portuguese workers and families, but it denied the availability of the accommodation to locally qualified householders who may have wished to live there legally.

There is without a doubt clear evidence from this and other previous cases I have seen, that the control of accommodation in Jersey is not as controlled as it needs to be, especially given the cost and availability to the remainder of taxpaying Islanders who sit back in dismay and disbelief at the States who choose to do little or nothing for the majority.

Sixty per cent of people in Jersey do not own their own homes. This and the cost of housing driven by the financial investor means the dream of home ownership is just that – "a dream". It is now time to consider closing access to purchasing property to those who are residents only. It is now time to ensure that new fields for first-time homebuyers are reserved in perpetuity for first-time homebuyers and most importantly buyers who live here. Not just those who are seeking to bloat their pensions by having locals pay them astronomical rents to cover their investments so that they have a paid- off flat to live in when they retire and the money to buy another to keep local residents in who can augment that retirement lifestyle.

I  would  also  like  the  law  to  be  changed  to  remove  the  clause  from  any  lease prohibiting access to a rent control board and there should be and must be in my view the right to access a complaints procedure with the right of appeal for all residents.

The current situation of unaffordable housing is clear for all to see.

What is not so easy to see and appreciate, is the impact upon ordinary people to maintain their standards of life, let alone improve upon them, especially when the systems are not in place to protect them from new arrivals queue-jumping for the shortage of available properties and jobs in all sections of the market.

The cost of living, the increase in tax and decrease in allowances have a daily impact upon low-income families that, over time, erodes families' abilities to stay together on the Island; and standards of life for many are difficult, if not impossible, to maintain, for those that choose to remain or for those groups, like the elderly, who are not upwardly mobile.

The greatest proportion of anyone's budget by far is for rent or mortgage and unless we can guarantee the ability for ordinary people to meet these demands without great difficulty, we are brewing trouble for ourselves down the road.

If one is lucky enough to achieve a mortgage, not many these days, then at least one can rent out some of the accommodation to others to help defray the costs, but with mortgages now beyond the reach of most, the only alternative is to rent or leave. The options on renting are not very good.

Opportunity lost

The limited opportunities for ordinary residents to progress into home ownership by guaranteeing them advancement in employment will never change in the main unless we change the basic way we do things now.

We  need  to  fully  appreciate,  understand  and  take  into  account  that  we  are  a geographically small jurisdiction, and as such, we have limited opportunities that need to be protected for residents and their children.

After all, what is the point of training our youngsters in nursing or physiotherapy for years, when they can't secure employment in the more lucrative and secure posts they have trained for because they have been filled by newcomers to the Island? Arguments are often made against employing returning graduates on the grounds of them lacking or having little experience.

There should be a survey conducted to see how many graduates who receive grants are placed  and  I  ask  the  Minster  for  Education,  Sport  and  Culture  to  join  in  by commenting upon these issues and my report. In these cases and in cases that have already been mentioned by myself before, the qualified are forced to go elsewhere when their employment opportunities are limited. Sometimes to far-away places like Australia, where they can find employment in the field in which they have trained themselves and where they can find an affordable home to start a family. Sadly, they are far removed from their families in Jersey where they were born, educated and raised.

"It is understandable if people want to travel to have a good standard of living – it is not so understandable when they are forced to by lack of controls and protection for them within their native lands!" Especially after all the education we have given them they  are  forced  to  migrate  away  because  we  do  not  give  them  the  employment opportunities they have qualified for.

There should be a reasonable standard of living in Jersey

One that enables an Island child to be born, educated, employed and housed in a way that allows them to plan a future that includes Jersey for themselves and their loved ones. At the moment that is denied to many who are qualifying or young that have no

chance of getting promoted or employed in a job that remunerates them and their partners if they have them to earn enough to purchase property and remain here.

The need to compete

There  have  been  many  instances,  where  we  have  been  told  by  the  Ministers  of influence that we as a jurisdiction, need to compete equally with the Isle of Man and Guernsey.

In the Isle of Man and in Guernsey, they employ work permits and residents' permits to control access to the availability of labour, to protect their local population against overwhelming pressures from those that might seek to work from elsewhere to the exclusion of locals and to the supplanting of their families.

It is now a common complaint that even summer jobs are unavailable for school- leavers and students, as many of these jobs are filled by people who work at night who have 2 jobs , speak 2 languages and have no ties whatsoever to the Island in any other respect than money. They have mortgages to pay, yes that is true, but not in Jersey. Many  of  them,  in  turn,  once  secure  in  accommodation,  send  for  their  relations, including grandparents, to come to work here. This displaces opportunities for work and accommodation for those waiting their 12 years to qualify.

It is a common theme in small jurisdictions where finance has flourished, that housing has  risen  beyond  the  level  that  it  can  be  afforded  by  locally  born  or  long-term residents.  The  controls  are  regularly  tied  to  accommodation  opportunities  for newcomers and in that extent we are no different, but only so much by variety of controls employed.

I have attached in full at Appendix 1 the Resident Bill passed in the Isle of Man that regulates and monitors population there by registry. It is amazing that they had one done  and  dusted  in  2001.  They  have  much  more  land-mass  than  us  and  they understood very early that there is a need to introduce protective measures for their population.

"Isle of Man

Acts of Tynwald RESIDENCE ACT 2001 (Chapter 7)

Received Royal Assent: 20 March 2001 Passed: 20 March 2001

IOM ACT 2001-7; RESIDENCE ACT 2001

AN  ACT  to  provide  for  the  registration  of  residents;  regulating residence in the Island; and for connected purposes."

The argument against work permits

Note it applies ...AT ALL TIMES!

Heads = at a Time of Full Employment and Growth

During a time of full employment it would be unwise to introduce such controls. Work permits are there to be used as a mechanism to control employment opportunities, when there is a weak economy and jobs are scarce.

Tails = at a Time of Low Employment and Little or NO Growth

During a time of low employment it would be unwise to introduce such controls. Work  permits  are  there  to  be  used  as  a  mechanism  to  control  employment opportunities, to introduce them at a time when the economy is weak would send out a signal that we are closed for business ...

Heads We Win ....Tails You Lose!

________________________________________

"Isle of Man – Employment Rights

Work Permits

The Department of Economic Development operates and enforces the work permit system  under  the  Control  of  Employment  Act.  The  system  allows  employers  to employ individuals who are not Isle of Man workers, provided that there are no suitable Isle of Man workers available to fill those specific roles.

An application for a permit is made by an employer to employ an individual to carry out a particular role or else by a self-employed person. In each case, where successful, the  permit  will  be  granted  for  a  set  period.  Where  necessary,  an  application  for renewal of a permit can also be made.

Work Permit Fees

The processing fee for a Work Permit for Employment or Self-Employment is £50. There is also a fee for Residential Status enquiries of £20 per application.

Employment  of  people from outside  the  European  Economic  Area  (EEA)  or Switzerland

Persons who are not nationals of the European Economic Area (EEA) are likely to be subject to control under the Immigration Acts (of Parliament) and may require a work permit granted under the terms of the Overseas Labour Scheme. Persons who are not EEA nationals granted leave to enter the Isle of Man as full-time students may apply for work permits under the Overseas Students Scheme 2006. Details at the bottom of the page.

Please note, from July 9th 2010 there will be some major changes to how you currently obtain the necessary work permit, in replacement of the Overseas Labour Scheme.

Following  proposals  approved  by  Tynwald  in  April  2009,  the  Isle  of  Man  is introducing  its  own  Manx  Points  Based  System  (PBS)  for  migrant  workers  and students. This will be in line with legislation which is already in place in the United Kingdom.

The Points Based System will not apply to applications for work permits for people from within the EEA or Switzerland and these will continue to be dealt with under the

Control of  Employment  Act.  Full  and  detailed  guidance  on the  PBS  is available below:

http://www.gov.im/lib/docs/ded/employmentRights/DED/manxpbsmigrantspolicyguid ance.pdf

http://www.gov.im/lib/docs/ded/employmentRights/DED/manxpbssponsorsguidance.p df "

________________________________________ Isle of Man Residence and Property

Immigration legislation on the Isle of Man is similar to that in the United Kingdom and applies to nearly everyone who is not a British Citizen or who does not have the right  of  abode  in  the  United  Kingdom,  although  Irish  citizens  and  EEA  citizens exercising Treaty rights are exempt from many provisions.

The Manx government permits non-residents to purchase and own real estate on the island. Indeed, without an influx of new residents there would be a decline in the overall population. The official policy is to target specific areas for growth and ensure their compatibility with the Manx community. The recent expansion of the finance sector has created many more jobs than could possibly be supplied by the existing market. The resulting need for professional and skilled people from outside the Island is therefore likely to continue for the foreseeable future.

In 2000 the Isle of Man's parliament, Tynwald, passed a Residence Bill which would give the island's administration the power to impose immigration controls on non- Manx individuals.

The Isle of Man is being pressured by shortage of housing for its local population – this is a  normal  symptom  of  increasing  success  for  an offshore jurisdiction. The success of the island's offshore financial services sector, together with a flow of wealthy individuals seeking relief from high EU taxes, is quickly driving house prices higher.

Local Manx' inhabitants form a high (although declining) proportion of the total population of 72,000, and by no means do they all benefit from the increasing wealth of  the  offshore'  economy.  Faced  with  the  prospect  of  its  indigenous  population becoming paupers in a land of wealth, the Manx government will eventually have to follow other such jurisdictions in controlling rents and sale prices, or in limiting access to housing for foreigners.

The Royal Assent was granted to the Residence Act on the 20th March, 2001. The Act is perceived by the government as a piece of contingency planning: legislation to be kept in reserve and activated only in circumstances of necessity in response to a seriously deteriorating economic or social situation requiring government intervention. It was, and remains, the government's hope that it will not prove necessary to activate the legislation and that any future growth in population can be absorbed and will not create the circumstances which would warrant activating the Residence Act.

After EU enlargement was agreed in early 2003, pressure increased on the island for residency controls to be boosted.

Speaking during a debate on the European Communities (Amendment ) Bill – which updates existing Manx laws to include the 2001 Nice Treaty – Labour member Peter Karran suggested that: "With this piece of legislation there will be even more need as far as residency control (in the Island) is concerned."

This  viewpoint  was  supported  by  then  Chief  Minister,  Richard  Corkhill,  who announced that: "We are part of the UK immigration law."

He went on to add: "The work permit control legislation is most likely to be our saviour. We must pay due regard to the legislation we already have." In December 2008,  the  Department  of  Trade  and  Industry  released  a  consultation  document intended to precede new Regulations aimed at modernising aspects of existing work permit legislation.

The Department issues around 10,000 work permits each year, playing a vital role in ensuring employers are able to secure the suitably skilled workers they require. This in turn has assisted the economy to continue to grow at over 6% a year while the population has grown by less than 1%. The present review is intended to ensure that the legislation, the protection afforded to Isle of Man workers and the needs of the economy are in alignment to the greatest degree possible.

Key matters considered in the consultation include proposals to –

• update the economic and social criteria which are used to determine whether or not a permit should be granted;
• modernise exemption policy so that some key individuals, such as those being targeted by Government inward investment policy, and also  some  temporary  and  intermittent  visitors  would  not  require permits;
• ensure  that  the  Department  is  aware  of  any  relevant  criminal convictions of persons applying for work permits and any relevant offences  committed  by  persons  subsequent  to  their  being  granted work permits.

Minister for Trade and Industry Hon David Cretney MHK commented –

"The  present  consultation  follows  on  from  the  Review  of  Work  Permit Legislation and its Administration" which I asked Nick Black to undertake in 2007. That review confirmed my view that there was no need to remove the work permit system and that employers and the wider public were supportive of its broad aims. Nick Black did, however, consider there was a need to review the current operation of the system to ensure that the needs of the workforce were balanced with those of the economy. Whilst the Regulations have not been amended since 1995 the economy has moved on. The proposals in the consultative document are an attempt to create a work permit system which fits the economy of the Isle of Man in the 21st century and which carefully balances the interests of Man workers and employers on the Island.

If that balance is too much in favour of employers then some of our local workers  may  be  overlooked  for  no  good  reason  and  may  justifiably  feel aggrieved; equally if employers perceive the legislation to be a strait-jacket they may choose not to invest, recruit or expand or on the Island and the legislation may have the opposite effect to that which is intended."

Legislation to make immigration controls more lenient was approved on December 16 under the Control of Employment (Exemptions) Order 2009, and came into effect in the Isle of Man on January 1, 2010.

The new legislation exempts certain employments, the great majority of a temporary or intermittent nature, from the requirement for a work permit. The Order is designed to make the island an easier place to do business by reducing the administrative burden upon employers while at the same time protecting the essential interests of Isle of Man workers.

One of the main changes increases the general exemption period where a permit is not required from three days to 10 working days a year. With a very small number of exceptions –  construction,  mobile  caterers  and  temporary  retailers –  this  general exemption will apply across the board.

There is a longer exemption period for certain higher level employees of international companies. This is in recognition of the fact that such companies need to be able to move staff between jurisdictions; the exemption period is a maximum of 48 days year in this case. The exemption does not cover all employments, and is subject to certain conditions.

A further exemption category covers persons relocating businesses to the island or establishing a branch or subsidiary of a non-IoM business.

In total, 13 types of temporary and intermittent employments are exempted, along with three categories of permanent employment.

Minister for Trade and Industry, David Cretney MHK explained that –

"The Department listened very carefully to consultees and worked hard to produce  a  balanced  package  of  measures  aimed  at  increasing  the attractiveness  of  the  Isle  of  Man  for  employers –  and  hence  overall employment opportunities – without diminishing protection for Isle of Man workers."

________________________________________

The Jersey experience

The Jersey experience is mirrored in many ways from the text above. We, however, in Jersey, have no bar on those from the European Union who would wish to come here to live and work and limited controls by application from elsewhere, with only a never-ending promise that something is coming to address the concerns.

In my view it is now patently obvious that we have passed the point where we can continue to allow the current employment controls and residence controls to manage

our Island sustainably and it has passed the point where we can wait for the migration systems to come forward as they are no longer credible. I cannot be the only States member  who  recognises  that  the  price  of  homes  in  Jersey  has  far  surpassed affordability for the majority of locally born people and homes are fast becoming unattainable for most, without some help from the States or the bank of Mum and Dad.

I have also, most disturbingly, recently read accounts in the media where locally born and educated people are being forced out of the work-place because they do not speak the same language as the rest of the workers who come from a non-English-speaking EU country. Had this been the reverse, there would no doubt be genuine calls for an investigation by many of those who seek, like me, to have a fair society which is genuinely multi-cultural.

Some  might  say  that  a  work  permit  system  may  be  heavily  bureaucratic  and expensive.  I  disagree:  this  is  a  very  weak  argument,  and  weaker  still  when  one considers the domino effect of the lack of controls that we currently have and those that are forever on the near horizon. Work Permits are chargeable for each individual, negating cost, and by way of example the Isle of Man manage their work permit department with 7 people; we run our population office with 20.

The Regulation of Undertakings Law

It is this law that has caused significant concern to businesses in my experience, including banks, who have agreed that a work permit scheme would be preferable as it is  something  that  they  know  and  understand  worldwide.  The  Regulation  of Undertakings and Development considerations that are run under the Law should be an Economic Development consideration as to types of business, but the Housing Department,  in  my  view,  should  grant  resident  permits  based  upon  work  permit approvals  that  are judged  against  criteria that  evaluates  and  guarantees  need  and available labour within the Island that could meet the need or be trained to in a short period of time; and in that instance a condition should be made that any permit be linked  to a  requirement  to  train  a resident  so that  the  need  to  grant  approval  is temporary, and so that the temporary worker does not by default add to the population and enter into the housing market with an unfair advantage over those who are already established.

There should be on going opportunity for advancement into new work or transfers from one sector to another, preferentially given to locally established people.

I believe the time has come for us to control the work available so that it benefits those that are already committed to Jersey by their families and residency.

I would like to see the introduction of work permits and residency permits but not in a retrospective way. That should be clear.

That would obviously be contrary to human rights. It is not what I am proposing.

It therefore would mean all those who were resident in Jersey and registered on the day that the law came into affect would not suddenly find themselves out of work or accommodation.

The existing residents would be protected.

It would have to be done from a set date, i.e. 1st January 2011, in order to make sure it did not fall foul of the Human Rights Law. That would mean all those that currently benefit from residency in Jersey would retain those rights.

I  am  not  asking  the  Council  of  Ministers  to  introduce  something  that  would  be contrary to the EU Human Rights Law.

In fact, they would not do such a thing, so to suggest otherwise is ridiculous.

As a party to the UK responsibility, the Isle of Man and Guernsey (see Appendix 2), who use these systems, are doing so within an acceptable Human Rights framework and we should in my view do the same.

A review in the first instance can provide everyone with the information we need, so that any future decision to establish such a system when one is required has been worked through.

I, for one, have no confidence in the current system and I am tired of watching the Immigration issues drift from one elected Assembly to another with little change.

Financial and manpower implications

To review the current legislation and conduct a review along the lines of scrutiny for this exercise I estimate would cost less than £50,000 which I consider can be met within existing resources.

The reason for that is the Laws exist, so accumulating them, with the aid of Guernsey and the Isle of Man, should not prove difficult, all islands now have comprehensive websites where all information is readily available for all to see.

I anticipate the group might need to travel to both islands to consider their methods and practices perhaps. It may be that we could develop some common grounds for the benefit of future generations and enhance inter-island co-operation. It certainly would help us to understand what we have and what others have as methods to protect employment  and  access  to  affordable  housing  and  government  services  in  a transparent and evidence-led way.

APPENDIX 1

ISLE OF MAN

RESIDENCE ACT 2001 (Chapter 7)

Work Permits Isle Of Man

Whilst there are no special restrictions on access to the Island (other than those under the Immigration Act http://www.gov.im/cso/immigration/?menuid=7672 which apply equally in the United Kingdom) the ability of newcomers to take up work is governed by the Control of Employment Acts which require anyone who is not an Isle of Man worker' to have a work permit before starting employment or self-employment in the Island. (There is a certain limited number of occupations for which permits are not required, e.g. doctors, dentists, ministers of religion or the police).

Qualification as an Isle of Man worker' includes being born on the Island, resident for at least five years, married to an Isle of Man worker', having received full-time education during residence (and having remained on the Island thereafter) or having a Manx-born parent who has spent the first five years of their life on the Island. Full details are given in the  http://www.gov.im/ded/employmentRights/workpermits.xml Department of Economic Development web site.

Work Permits

The Department of Economic Development operates and enforces the work permit system  under  the  Control  of  Employment  Act.  The  system  allows  employers  to employ individuals who are not Isle of Man workers, provided that there are no suitable Isle of Man workers available to fill those specific roles.

An application for a permit is made by an employer to employ an individual to carry out a particular role or else by a self-employed person. In each case, where successful, the  permit  will  be  granted  for  a  set  period.  Where  necessary,  an  application  for renewal of a permit can also be made.

Work Permit Fees

The processing fee for a Work Permit for Employment or Self-Employment is £50. There is also a fee for Residential Status enquiries of £20 per application.

Employment  of  people from outside  the  European  Economic  Area  (EEA)  or Switzerland

Persons who are not nationals of the European Economic Area (EEA) are likely to be subject to control under the Immigration Acts (of Parliament) and may require a work permit granted under the terms of the Overseas Labour Scheme. Persons who are not EEA nationals granted leave to enter the Isle of Man as full-time students may apply for work permits under the Overseas Students Scheme 2006. Details at the bottom of the page.

Please note, from July 9th 2010 there will be some major changes to how you currently obtain the necessary work permit, in replacement of the Overseas Labour Scheme.

Following  proposals  approved  by  Tynwald  in  April  2009,  the  Isle  of  Man  is introducing  its  own  Manx  Points  Based  System  (PBS)  for  migrant  workers  and students. This will be in line with legislation which is already in place in the United Kingdom.

The Points Based System will not apply to applications for work permits for people from within the EEA or Switzerland and these will continue to be dealt with under the Control of  Employment  Act.  Full  and  detailed  guidance  on the  PBS  is available below:

Application Forms

The following application forms can be downloaded at the bottom of this page:

• Employed – this form is for employers who need to employ persons who are not Isle of Man Workers; it is to be completed by both the employer and potential employee.
• Self-Employed – this form is for persons who are not Isle of Man Workers who wish to commence self-employment in the Isle of Man
• Overseas Students Scheme – this form is for individuals from outside the EEA who have been granted leave to enter the Isle of Man as students. This permit allows such students to work up to 20 hours per week during term time.

Please contact +44 (0)1624 682390 if you require an application form for the Overseas Labour Scheme. This form is for employers who need to employ individuals from outside the EEA in the Isle of Man. Please ensure that any application is completed in full, as failure to do so may result in processing delays.

Meetings of the Work Permit Committee

The Minister for Economic Development has delegated his power to make initial decisions on work permits to the Work Permit Committee. This Committee, which consists  of  a  chairperson  and  two  other  members,  has  a  wide  knowledge  of employment matters. Due to the large volume of applications it is impractical for the Committee to consider every case, and straightforward cases are dealt with on behalf of the Committee by its Secretary, acting under delegated authority.

The next meetings of the Work Permit Committee are scheduled to be: Monday 14th June and Tuesday 29th June.

If  a  work  permit  application  is  referred  to  the  Committee  for  consideration,  an advisory  e  mail  will  be  sent (subject to an  email address  being  supplied)  to  the applicant.

Isle of Man Employment Law

Isle of Man employment law applies to employees on work permits. Applicable rights including entitlement to the minimum wage and paid holidays, maternity and paternity leave, and the right to a written statement of terms and conditions of employment. For further information go to http://www.emplaw.gov.im

APPENDIX 2

STATES OF GUERNSEY GOVERNMENT WEBSITE

Right to Work

Guidance Notes for Employers

Right to Work Documents

What records should be kept by an employer? Housing Licences

Application Procedure

Further Information

Right to Work Documents

1. Every new employee has to hold a Right to Work document.
2. You  may lawfully employ a person who holds any one of the following documents provided the holder is meeting the conditions on the document and it has not expired a:

– Status Declaration

– Declaration of Lawful Residence

– Temporary Exemption Certificate

– Housing  Licence  without  any  employment  conditions  (sometimes known as a "compassionate licence")

– Housing Licence with a condition that it is valid while the person is employed in a specific job in your employment.

3. Status Declarations are permanent documents indicating that the person is a qualified  resident  i.e.  a  "local  person".  There  are  no  restrictions  on  the employment of persons holding Status Declarations.
4. All the other documents mentioned above are "temporary" documents i.e. they are only valid for a specified period and include an expiry date. You should not employ (or continue to employ) a person after the expiry date of their Right  to Work  document  unless  they  obtain  a  replacement  document. Declarations  of  Lawful  Residence  and  Housing  licences  can  also  become invalid if the employee ceases to reside at the address or in the circumstances specified on the document. Again, a new document must be obtained if you wish to continue to employ that person.
5. If the person holds a licence with a condition that it is valid for a different employer it will not be valid for full-time employment with you. However, itis usually valid for part-time employment provided that the person continues to be employed on a full-time basis for the employer specified on the licence. (Staff of the Housing Control section can clarify the situation in individual cases.)

6. If the person holds a Declaration of Lawful Residence which indicates that he or she is resident and employed in a Hotel itis unlikely that it would be valid for any other employment and you are advised to check with the Housing Department's Housing Control section.
7. The Right to Work Law allows some people to be exempt from the need of a Right to Work document. These are:

i.  Persons visiting the Island for not more than 15 hours; ii.

1. Employed  persons  whose  employer  is based  outside  the Island; and
2. Self-employed persons from outside the Island;

In both cases provided that their employment in Guernsey does not exceed 10 days in a 30-day period and an aggregate of 90 days in 12 months;

iii.  Persons appointed by the Crown.

What records should be kept by an employer?

From 1 December 1990, it became a requirement for all employers to keep records of all their employees.

All employee records must be updated as necessary and kept for 3 years after they leave the job to which the records apply.

All records must be kept at the employer's place of business.

If the employer carries on business at more than one permanent establishment and employs more than five people at the establishment then records must be kept there and a copy kept at the employer's principal place of business. (The Department is allowed to exempt an employer from this requirement on application being made).

Each record must list the following details:

Place of work

Full name of employer

Job title of employee

Full name of employee

Employee's previous name if changed since taking up employment Date of birth of employee

Social Security number of employee

Date employment ceased

The Department's Housing Control Inspector has the power to call at places of work to inspect the records that employers are required to keep.

Housing Licences

8. If you wish to employ someone who does not have a Right to Work document itis likely that they could only be employed by you if a Housing Licence is issued specifically tied to their employment by you.
9. There are three types of "employment related" Housing Licences:

1. A  short-term  licence  valid  for  up  to 9 months  for  temporary  or seasonal work;
2. A short-term licence valid for up to 3 years for work which is not regarded as fully essential by the Housing Department; and
3. An "essential" housing licence.

10. The main  differences  between  short-term  and  "essential"  licences  can  be summarised as follows:

– Short-term licences are issued because it is recognised that there is a shortage  of  local  manpower  for  that  type  of  work  regardless  of whether  the  work  is  unskilled,  semi-skilled  or  skilled.  They  are typically issued for periods of up to 9 months or 3 years;

– "Essential" licences recognise that the work requires someone with qualifications,  skills  or  experience,  which  the  employer  has  been unable to recruit locally. They may vary in length up to 15 years, as explained further below.

11. Limitations apply to short-term licences as follows:

– Generally, 9 month short-term licences will only be issued to people who have lived outside Guernsey for all of the preceding 3 months;

– Generally, 3 year short-term licences will only be issued to people who have lived outside Guernsey for all of the preceding 3 years - one exception to this is that a nine-month licence might be converted to a three-year period;

– All  short-term  licences  are  intended  for  single  or  unaccompanied people - they do not allow the person to accommodate other family members;

– Short-term licences are restricted to accommodation in staff quarters, in lodgings or in existing households (i.e. "en famille").

12. "Essential"  licences  can  be  issued  for  varied  periods.  Often  "five  year licences" are issued (to assist in meeting the Population Objective in the States Strategic and Corporate Plan). In rare cases licences will be issued for, or extended to, 15 years.
13. The words "five year licences" may be misleading and thus misinterpreted. The important point to note is that the licence generally restricts the licence holder's  consecutive  period  of  residence  in the  Island  to  five  years.  For example, if a person has already lived in Guernsey for the past two years and he obtained a licence to move to a different employer it would only be valid for a further three years' residence.

14. An essential licence holder can accommodate his family. (See paragraph 30 below.)
15. A person who holds an "essential" licence, or a series of "essential" licences, for 15 consecutive years will become a qualified resident. The licence holder's spouse and children can also qualify. The policy of "five year" licences is, therefore, intended to prevent the majority of holders from gaining residential qualifications,  becoming  permanent  residents  and  thereby  contributing  to population growth.
16. Long-term "essential" licences, for example those that are valid for 15 years, are  therefore  generally  restricted  to  those  posts  where  the  Department  is satisfied  either: -  that  long  term  continuity  in the  job  is essential  to the community; or - that the qualifications, skills or experience required for the post are scarce on a national or international basis so that recruitment is exceptionally difficult.

Application Procedure

Short-term licences

17. If you wish to employ someone on a short-term licence basis you are advised to apply on a short-term licence application form (click here to download a form)  http://www.gov.gg/ccm/navigation/housing/right-to-work/application- forms . If you have been given a prior indication that short-term licences are readily  available  for  your  industry,  no  accompanying  letter  is necessary. However, if you are aware that short-term licences are not common in your industry, it would be helpful to enclose a brief accompanying letter indicating how you have advertised and what local response, if any, there has been.
18. Applications for the extension of short-term licences beyond three years will not be approved. The holder must break residence for at least three months before becoming eligible for a new 9-month licence. An absence of three years is necessary before a new three-year licence will be granted.

Essential licences

"Approvals in Principle"

19. If you need an essential licence for a particular post, the Department strongly recommends that you make application, by letter, before you seek to engage a non-local person. The application should include an indication of the duration of licence requested e.g. 3 or 5 years. The Department will respond to that application by deciding, in principle, whether a licence will be granted once a suitable candidate has been recruited.
20. The application should provide the Department with a detailed description of the  post's  duties,  together  with  the  qualifications,  skills  and  experience required; whether the post is a new one and if it is not, how it has been filled in the past. You should also indicate why you need the licence for the period requested and why you consider the post is essential to the community - will it provide some essential service to the community; will it directly improve the company's contribution to the exchequer by way of taxes; will it bring some

other benefit to the community? It would also assist the Department if you can indicate  whether  during  the  licence  period  you  intend  to  train  a  local' replacement.

21. If  you  have  advertised  the  post  locally  and  not  had  any  suitable  local applicants you should provide these details when making application for a licence in principle.
22. It is advisable to copy the letter of application to the States' Department or Regulatory Body responsible for your industry, as the Department is likely to seek advice on such applications before reaching a decision. For example, the Department will usually seek advice from the Guernsey Financial Services Commission on posts in the finance industry, the Commerce and Employment Department in other commercial posts, and the Health and Social Services Department on the appointment of health professionals etc.

Applications for the issue of an "essential" licence

23. When the Department has agreed in principle to grant a licence, and you subsequently submit an application for a named person to hold the licence, you will generally be expected to provide details of your attempts to recruit a local person (including the results of local advertising and the reasons why any local applicants were unsuitable).
24. Such applications should be made on the standard licence application form (download  form  here)  http://www.gov.gg/ccm/navigation/housing/right-to- work/application-forms and be accompanied by a brief letter indicating that the application relates to the "Approval in Principle" and providing the details referred to in the previous paragraph.

(Note - Once the Department has granted an approval in principle, it is not usually necessary  to  seek  the  advice  of  another  States'  Department  or  the  appropriate Regulatory Body when the application is made for a named person to take up that "Approval in Principle".)

Accommodation options for holders of "essential" licences

25. If an "essential" licence is granted it will usually allow the licence holder:

– To occupy a specific self-contained dwelling (whether he purchases or rents it, or whether it is provided by the employer); and

– To accommodate his spouse and children.

26. However,  the  Department  will  usually  set  out  options  for  the  type  of accommodation that the licence holder may occupy, based on the licence holder's income including salary (with overtime if applicable), bonuses, profit shares and other "perks".

Expiry of licences

27. If the licence is granted on a "five year" basis the holder is generally expected to leave the Island on its expiry, although the person could freely take up occupation of a Part A Open Market dwelling in order to extend his period of residence (see 32 below).
28. In  rare  cases  the  licence may  be  extended,  but  generally  only  where the Department is satisfied that long-term continuity provided by that employee has become essential or where the qualifications etc required for the post are scarce so that recruitment is exceptionally difficult.

General Comments on Essential Housing Licences

29. Generally, only one member of the household needs to hold a housing licence. The Housing Control Law enables members of the essential licence holder's direct family to live with him or her without the need for further licences. These  family  members  will  be  eligible  for  "Declarations  of  Lawful Residence" as their Right to Work Document.

[In the current Law, "direct family" is restricted to spouse or child (including adopted or step-child), father, mother (and father- and mother-in-law) and grandchild.]

30. However, a partner / common law spouse is not covered by the householder's licence and will require a separate licence. (These licences are issued where the Department is satisfied that the couple are genuine companions.)

Open Market Accommodation

31. If  the  Department  is  not  prepared  to extend  an  essential  licence  and  the employer (and employee) wishes to continue the employment, this could be achieved by rehousing the employee in an Open Market Part A property. There is no time limit on occupation of such a dwelling and it carries an automatic Right to Work. However, occupation of an Open Market dwelling would not count towards residential qualifications in those circumstances.
32. An employee who holds a 15-year licence can also opt to reside in an Open Market Part A property. In these circumstances, he would be treated as if he were resident under licence for so long as he remained employed in the post for which the licence had been agreed and on completion of 15 years' service would become a qualified resident.

Other "Open Market" accommodation

33. Although persons living in Open Market properties inscribed in Part A of the Housing Register (i.e. private houses) do not need housing licences and have an automatic Right to Work, the same is not true of other "Open Market" accommodation.  For  example,  many  hotels  are inscribed in Part B  of  the Housing Register, but only the owner and manager (and members of their direct families); staff employed on a full-time basis in the hotel; and bona fide tourists can live in Part B hotels without the need of a housing licence. If a potential employee claims to be resident in an Open Market hotel you should

ask  to  see  their  housing  licence  and  check  with  the  Housing  Control Department that it is a valid Right to Work document.

34. Similarly, some Open Market properties are inscribed in Part D because they are in use as lodging houses. The owner and his direct family members are exempt from the need of a housing licence (and have an automatic entitlement to a  Right  to  Work  document),  but  all  other  occupants,  except  qualified residents, need housing licences. Again, it is recommended that any person who claims to be living in a Part D Open Market property should be asked to produce their housing licence.