Briefings
Immigration: The New Working Holidaymakers Scheme - a licence to avoid work permit applications?
On 20 June 2003 the Government announced the outcome of the review of the Working Holidaymakers Scheme. The main changes are:-
- the scheme will continue to be available only to citizens of Commonwealth countries;
- the age criterion now extends from 17 - 30 years of age;
- working holidaymakers are now permitted to take up work in any sector, for as long as they want on a full-time basis while in the UK on the scheme, and with no restrictions on time spent with one employer;
- switching into work permit employment is permitted once the working holidaymaker has been in the UK for over a year;
- those who are already in the UK as working holidaymakers can take advantage of the benefits of the revised scheme with immediate effect; and
- the scheme remains of two years duration with only one visa issued in the lifetime of any applicant.
What do these changes mean and what are their effect in practice?
Firstly, the most contentious area of the pre-review scheme was that working holidaymakers could only take employment incidental to a holiday and were not allowed to engage in business, provide services as a professional sportsman or entertainer or pursue a career in the United Kingdom. This had been interpreted under a "rule of thumb" that a working holidaymaker could only take full time employment for a maximum period of 12 months or part time employment over the full two year period. More importantly, there was no clear definition of what "pursuing a career" actually meant in practice. For those employers who have wished to abide by the provisions of the scheme, they would only offer full time employment for maximum of one year. Others refrained from taking on working holidaymakers if it was arguable that they would be "pursuing a career" by working for them. However, experience tends to suggest that this restriction was more honoured in its breach than in its observance.
The only work restriction that now remains is that working holidaymakers must not engage in business. They can therefore only take employment and are not permitted to establish a limited liability company to provide services or work on a self employed basis.
The other change of significance is that working holidaymakers will be allowed to switch into work permit employment after having been in the UK for at least 12 months. The current Immigration Rules prohibit any switch into work permit employment at any time during the two year working holidaymaker period. However, the practice to date has been to allow, on a concessionary basis, such switching where a work permit application has been approved. This has been done outside of the Immigration Rules and could not be relied on and a refusal would not attract a right of appeal. The Immigration Rules will now be changed to expressly permit a switch into work permit employment if a work permit application is approved. The downside is that whereas previously any such application to switch could be done at any time during the two year period, it is likely that the Home office will enforce the prohibition during the first 12 months much more strictly.
Notwithstanding the above, all the other minor restrictions which apply to the existing Working Holidaymakers Scheme will continue to apply to the revised scheme, e.g. the applicant must be unmarried or married to a person who also meets the requirements of the working holidaymaker rule; they must not have dependent children who are five years or older or who will reach five years before the end of the two year working holiday; they must not have commitments which would require him/them to earn a regular income; and they must intend to leave the UK at the end of the working holiday.
Surprisingly, the changes to the scheme have been announced without a policy decision having been made on one of the most troublesome issues. This is the question whether relevant work experience gained whilst in the UK as a working holidaymaker can be taken into account for the purposes of meeting the skills criteria of the work permit scheme. Logic would dictate that it should, but at the time of writing, the position has not been finalised.
This leads into the headline question - can the working holidaymaker scheme be used as a substitute for a work permit? Our initial view is that it can, provided that it is understood that a subsequent in-country work permit application will need to be made before the end of the two year period. The viability of this is subject to clarification of the question of work experience gained in the UK.
Please note that the requirement to show an intention to leave the UK needs to be addressed very carefully. Also, time spent in employment as a working holidaymaker will not count towards the four year qualifying period for settlement for a work permit holder.
We will provide an update on this as and when the policy has been finalised.