Knowledge

The Committee for Home Affairs, responsible for Immigration and Population Management for the Bailiwick of Guernsey ("Guernsey"), have introduced a single and joint Employment Permit Policy (the "EPP"), effective from 3 April 2023. This is intended to support global recruitment for businesses in Guernsey by providing a streamlined and consolidated process for employers to get the green light for an individual to live and work in Guernsey.

Foreign nationals intending to live and work in Guernsey are required to have certain clearances affording them the rights to both:

Enter and remain in Guernsey (the "Immigration Clearance Requirement"); and

Live and work in Guernsey (the "Population Management Clearance Requirements").

The type of clearance required will differ based on the nationality and/or personal circumstances of the individual. For the purpose of this note, the foreign national groups are summarised as:

Nationals from the list of exceptions: British citizens, Irish citizens, persons with a settled or pre-settled status through an EU Settlement Scheme, other nationals with settled status and participants in the Youth Mobility Scheme ("Group A")

EU/ EEA and Swiss Nationals without settled or pre-settled status and indefinite leave to remain ("Group B")

'Rest of the world nationals' ("Group C").

This advisory note is prepared for employers. It sets out an executive summary of the Immigration Clearance Requirement and Population Management Clearance Requirements for the different foreign national groups and outlines the changes introduced by the new joint EPP.

Step one - Immigration Clearance Requirement

The Immigration Clearance Requirement or as it is perhaps better known, 'leave to enter and/or remain' is governed by the Guernsey Immigration Rules, 2008. It is a right granted to 'qualifying persons' by way of a United Kingdom ("UK") issued visa ("Visa").

All individuals in Group A are exempt from requiring a Visa to enter and remain in Guernsey,

All other individuals in Groups B and C, require a Visa to enter and remain in Guernsey.

Step two – the Population Management Clearance Requirements

All foreign nationals who intend to live and work in Guernsey also require clearances under the Population Management (Guernsey) Law, 2016. The Population Management Clearance Requirements concern the right to live and work in Guernsey.

The right to live in Guernsey

The Population Management Regime implements strict controls on who is allowed to live and work in Guernsey and requires all foreign nationals who intend to live and work in Guernsey to hold either:

- a Resident Certificate or Resident Permit; or
- an Employment Permit.

Resident Certificates and Permits are usually linked to a person's personal circumstances (strong family connections to Guernsey) and allow a person to undertake employment in Guernsey, usually without any restrictions or conditions associated with their employment. This note will focus on a foreign nationals' entitlement to live and work in Guernsey by way of an Employment Permit, but further advice can be given on Resident Certificates and Permits if
required.

Employment Permits are granted to individuals who meet the skills and qualifications for particular job roles where there are identified skill and/or labour shortages. Employment Permit holders are able to live in either open or local market properties in Guernsey and accommodate their immediate family members.

The right to work in Guernsey

Individuals from Groups A and B do not require a right to work clearance in the form of a Work Permit (the "Work Permit").

All other foreign nationals (Group C), looking to undertake employment in Guernsey, must obtain a Work Permit.

Work Permits are issued in respect of specific roles within eligible sectors and for a specific time period (which can be extended on application).

Work Permit holders must only undertake the work specified in the Work Permit.

Summary of documentation required for each category:

- foreign nationals from Group A, are only required to hold an Employment Permit to live and work in Guernsey (unless they are eligible for either a Resident Certificate or Permit).

- foreign nationals from Group B, are required to hold a Visa and an Employment Permit to live and work in Guernsey.

- foreign nationals from Group C are currently required to hold a Visa, Work Permit and Employment permit to live and work in Guernsey.

The changes introduced by the EPP

With an understanding of the Immigration and Population Management Clearance Requirements for different foreign nationals, we now unpack the material changes implemented by the EPP. Prior to 3 April 2023, employers recruiting for vacant posts in Guernsey, were limited, where possible, to recruiting persons from either the List of Exceptions or at least the UK Common Travel Area. The EPP has now eliminated this requirement with the result that businesses in Guernsey, are allowed to recruit globally, for all roles set out in the Employment Permit Policy Approved Posts Lists.

There were previously six types of Employment Permits- the Seasonal Employment Permit ("SEP"), the Short-Term Employment Permit ("STEP"), the Medium-Term Employment Permit ("MTEP"), the Long-Term Employment Permit ("LTEP"), a Limited LTEP and a Pathway LTEP, which are both incremental LTEPs (collectively, "the Employment Permit System").

Removal of the MTEP

The main change for employers to be aware of is that the EPP has removed the five-year MTEP from the Employment Permit System. All roles that were previously eligible for MTEPs have been upgraded to LTEP roles. All current MTEP holders
remain unaffected by the change and the terms of existing MTEPs will be honoured until the listed expiry period. After which, the MTEP holder may, subject to meeting the prescribed criteria, apply for an LTEP.

The rationale for removal of the MTEP, we are advised, is to bring Population Management Requirements in line with Immigration Requirements. Foreign nationals, subject to meeting certain criteria, become eligible to apply for indefinite leave to remain after five consecutive years in Guernsey.

The five-year MTEP did not allow sufficient time for indefinite leave to remain applications to be considered once employees became eligible and applied. This restriction also required employees to apply for extended clearances to live and work in Guernsey whilst their applications were being determined. With LTEPs being issued for up to eight years, the deciding authorities are afforded sufficient time to determine applications for indefinite leave to remain whilst employees have the necessary clearance in place to remain and work in Guernsey.

SEPs and LTEPs remain unchanged by the EPP, save to state that with the removal of the MTEP, all roles that were previously eligible for an MTEP are now eligible for an LTEP.

Changes to the STEP regime

STEPs are usually issued to junior or mid-level job roles with two or more years' relevant experience and span across a number of areas of employment. Some examples of roles that are eligible for a STEP include finance assistants, construction labours and general retail assistants.

STEPs are valid for a maximum period of one year and allow the holder to live in any local or open market accommodation as a lodger. STEPs cannot accommodate anyone in their residence.

STEPs were previously renewable for up to five years. The EPP has reduced this to a maximum of three consecutive years. A STEP holder who has reached the maximum three-year limit may choose to either leave Guernsey, apply for an LTEP (subject to meeting the criteria), or apply for a further STEP, but only after taking a recognised break in residence being equal to or greater than their last period of residence in Guernsey.
All STEP permits issued on or before 2 April 2023, remain valid until they reach a total aggregate residence of five years in Guernsey.

Out of policy applications

Should a job role not appear on the EPP Approved Posts List, but is featured on the UK Skilled Occupation List, employers may submit an 'out-of-policy' Employment Permit application. Such applications are granted at the discretion of the Committee for Home Affairs and are therefore not guaranteed.

Regulation

Prior to 3 April 2023, the EPP regulated when Employment Permits may be granted under the 2016 Law, whilst the Work Permit Policy regulated when a Work Permit may be granted under the Immigration Act, 1971.

With effect from 3 April 2023, the EPP replaced the Work Permit Policy.

Population Management intends for the EPP to cover both Work and Employment permit applications under one policy and that when Work Permits are required, they will be issued through the Employment Permit as a single joint permit.
The infrastructure to facilitate a single application process is expected to be in place later this year. For the moment, employers are required to submit applications for Employment Permits through the Population Management Portal and applications for Work Permits, where required, directly with Guernsey Border Agency.

Our thoughts on how the changes by the EPP may affect recruitment of foreign employees

The changes introduced by the EPP are a commendable effort to open up employment in Guernsey to the global market. This boosts the potential for a diverse workforce tailored to the unique economic and social circumstances of Guernsey.

Even though MTEPs have been removed from the Employment Permit System, all MTEP roles are now eligible for LTEPs. This no doubt will benefit a greater pool of LTEP holders who become eligible for Established Residency (and the accompanying benefit of no restrictions or conditions associated with employment) and goes a long way towards creating permanent and sustainable adjustments to the existing workforce, without burdening the housing market, infrastructure, and public services by having to continuously recruit.

The changes to STEPs may be perceived as a limitation on the number of years that a holder is allowed stay in Guernsey and a challenge to a holder looking to settle in Guernsey, if so desired. Although, the opportunity is open to STEP holders to 'bridge the gap' by upskilling and applying for a significantly increased number of roles that are now eligible for LTEPs.

If you require any advice on employing individuals in Guernsey under the population management regime, please get in touch with a member of the Bedell Cristin Employment Team.