Retaining South African Employee

petergregory · Post by **petergregory** » Wed Nov 14, 2007 9:07 am

I have a nursing home and we have difficulty in attracting potential staff from the local area. Thus we rely on foreign carers. The majority are East European thus have no issues pertaining to their right to work in the UK. However we have employed a South African lady for the last year who is by far and away the best employee we have. However her work status is dubious to say the least; she is currently on a student visa, this somehow has been renewed each year over the last 4 years through some intermediary. Although a student visa expects her to study this has been ignored and used merely as means of allowing her to work.

The current predicament is that her student visa is due to run out early next year, the intermediary is no longer "working", and she has no qualifications to show for the 4 years worth of student visas she has obtained. I am loathed to lose her as she is an asset to the company, not merely because of the hours and flexibility she offers, but the standard of care she gives and the attitude she brings.

Is there anyway that I can help to keep her in the UK. My issue is that the Home Office will not renew her student visa given lack of qualifications acquired during the four years.

The employee's mother does live in the UK as she is married to an UK national. However the mother does not have a British Passport, although she has been here for 20 odd years. Is this a potential avenue???

What do people think?

Thanks in advance for any thoughts!!

Wanderer · Post by **Wanderer** » Wed Nov 14, 2007 9:13 am

I'd be more worried about the fact you've knowingly employed someone who is an illegal and as such the employer is liable to a fine.

Students have to be studying and work only 20hrs a week for their visas to remain valid. Also it sounds like this Student visa isn't exactly kosher...

The fine used to 2k but I think it's now unlimited.

Siggi · Post by **Siggi** » Wed Nov 14, 2007 9:35 am

Just a few questions to help the board assist you.

Is your SA lady qualified in any way? Frail carer/ nurse?
How old is she and how long has she she been in the UK?

On the face of what you have told the board, you are at risk of prosecution as I guess your lady is in breach of her student visa terms and conditions.

Saying all that, the best way around all this would be for her to return to SA and apply for a work permit with you as the sponsor.

Good luck and be careful.

petergregory · Post by **petergregory** » Wed Nov 14, 2007 10:14 am

Thank you for your replies.

This is not an excuse but my reason for employing her was due to problems attracting quality staff. I think it impertaive that I suspend her employment and suggest she go back to South Africa.

I would like to sponser her but think it futile given her lack of qualifications. She is has NVQ level 2 in health care which I don't think the home office will allow a visa on.

Perhaps to protect myself I should bite the bullet and end our relationship

try-one · Post by **try-one** » Wed Nov 14, 2007 10:20 am

Peter,
The best and only option for an illegal worker is to return to SA and apply for a work permit. You are knowingly breaking the law and in so you are doing her more damage than help; if she gets found out by the Home Office she may be deported and most likely not able to return to the UK.

sponsor her for a work permit, that would allow her to settle in the future and work for you for many years.

try the work permit route, even limited qualifications may be better than nothing; at least she has experience (4 years working for you) that helps

sakura · Post by **sakura** » Wed Nov 14, 2007 10:36 am

try-one wrote:Peter,
The best and only option for an illegal worker is to return to SA and apply for a work permit. You are knowingly breaking the law and in so you are doing her more damage than help; if she gets found out by the Home Office she may be deported and most likely not able to return to the UK.

sponsor her for a work permit, that would allow her to settle in the future and work for you for many years.

try the work permit route, even limited qualifications may be better than nothing; at least she has experience (4 years working for you) that helps

She's not an illegal, she has a valid student visa, although from what I gathered by the OP's post, she might be enrolled on a fake college or something.

Anyway, petergregory, I suggest you think carefully about what you're doing; maybe relieving her of her duties (if that's what you were planning on doing already anyway), but it would be unfair to her - you knowingly hired her on a student visa and now you're concerned, after four years?; the HO have surprisingly found out in the past about 'students' who end up working full-time instead, and can cancel their visas and make it very hard for them to return. I know she's a good employee, but it's a shame she didn't study whilst she hand the chance - you could have applied for a work permit much easier.

Her mother and (step)father are no use to her immigration-wise, and she'd be too old to qualify for anything through them anyway.

How old is she? She might try the working holiday maker visa - she can only work for 12 months, but if she makes good progression, a work permit might be more attainable.

If she doesn't qualify, you should just try the work permit route directly and see what happens.

Wanderer · Post by **Wanderer** » Wed Nov 14, 2007 11:53 am

sakura wrote:
try-one wrote:Peter,
The best and only option for an illegal worker is to return to SA and apply for a work permit. You are knowingly breaking the law and in so you are doing her more damage than help; if she gets found out by the Home Office she may be deported and most likely not able to return to the UK.

sponsor her for a work permit, that would allow her to settle in the future and work for you for many years.

try the work permit route, even limited qualifications may be better than nothing; at least she has experience (4 years working for you) that helps
She's not an illegal, she has a valid student visa, although from what I gathered by the OP's post, she might be enrolled on a fake college or something.

She's illegal if she has a student visa and isn't actually studying....

sakura · Post by **sakura** » Wed Nov 14, 2007 2:09 pm

Wanderer wrote:
sakura wrote:
try-one wrote:Peter,
The best and only option for an illegal worker is to return to SA and apply for a work permit. You are knowingly breaking the law and in so you are doing her more damage than help; if she gets found out by the Home Office she may be deported and most likely not able to return to the UK.

sponsor her for a work permit, that would allow her to settle in the future and work for you for many years.

try the work permit route, even limited qualifications may be better than nothing; at least she has experience (4 years working for you) that helps
She's not an illegal, she has a valid student visa, although from what I gathered by the OP's post, she might be enrolled on a fake college or something.
She's illegal if she has a student visa and isn't actually studying....

She is in breach of her visa, so maybe.... i wouldn't think she's illegal, though.

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 2:12 pm

Working in breach of the terms of her student visa does make her illegal, i'm afraid.

Victoria

paulp · Post by **paulp** » Wed Nov 14, 2007 3:31 pm

The OP has implied but not specified that she's working more than 20 hours.

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 4:40 pm

petergregory wrote: Although a student visa expects her to study this has been ignored and used merely as means of allowing her to work.

Okay, we don't know the hours she has been working, but she certainly hasn't been studying!

Victoria

paulp · Post by **paulp** » Wed Nov 14, 2007 4:53 pm

VictoriaS wrote:Okay, we don't know the hours she has been working, but she certainly hasn't been studying!

Victoria

Totally agree.

try-one · Post by **try-one** » Thu Nov 15, 2007 9:19 am

Post by **PaperPusher** » Fri Nov 16, 2007 12:24 am

Hello petergregory

There is next to no chance for you to get a work permit for her. No first applications for carers/senior carers are being approved unless the post meets certain stringent requirements.

See the current occupation sheet for senior carers:

Extensive research carried out with the care sector indicates that the majority of SCW posts are unlikely to meet the work permit skills
criteria, other than those in residential child care in Scotland

The skills criteria must not be waived for first applications or changes of employment.

ww.ind.homeoffice.gov.uk/documents/businessandcommercialoccsheet/occsheetseniorcarer.pdf

If she is a nurse or care home manager maybe......

But she cannot rely on work experience gained in the UK whilst working illegally - working for you - to make up her experience to get a work permit.

See the guidance notes

17. We do not take into account experience gained through working illegally in the UK.

ww.ind.homeoffice.gov.uk/6353/11406/workpermits/bc(g).pdf

WHM - wouldn't she get asked about her studies to help the entry clearance office make a decision about her intentions to return? She would only be able to work for 12 months out of the 24 anyway, or at least work legally.

Student extension - according to you she hasn't studied or passed any exams, so I cannot see how she would get an extension.

petergregory, this just my opinion, but some of your clients may be vulnerable, yet you appear to have knowingly employed someone who has used deception to get what she wants

I am shocked.

This situation is serious for you and her. It appears that she could not take up the employment, and you appear to have committed an offence. The unlimited fines have not come in YET.

My thoughts are that you are not going to be able to employ this person legally without a miracle. Maybe someone else will have some ideas.

Regards

PP

VictoriaS · Post by **VictoriaS** » Fri Nov 16, 2007 8:22 am

PaperPusher wrote:
petergregory, this just my opinion, but some of your clients may be vulnerable, yet you appear to have knowingly employed someone who has used deception to get what she wants I am shocked.

I don't think this is fair. Just because someone is breaking the rules with regard to immigration this does not mean that they are any kind of danger to those in their care, and it certainly does not mean that Mr Gregory has put his patients in any kind of danger.

However, I think that you are right that it is going to be next to impossible to get this lady legally workign int he UK.

Victoria

Post by **PaperPusher** » Fri Nov 16, 2007 11:42 am

Hello VictoriaS

this just my opinion

I do know this sounds harsh. There are more stringent requirements for workers in the health care industry than many other fields. POVA, CRB, reference checks, inspections where employee records are scrutinised etc...

I was thinking along the lines of honesty and integrity. I think that these are important qualities for people who work with vulnerable clients to have.

I do not think the CSCI, for example, would be as generous as you. They do check for this sort of thing.

There is also the possibilty of the employer getting fined. Moreover, don't some people get sent to prison for using fake supporting documents for FLR applications, or is it just fake ID?

However, I don't believe that all people who break the immigration rules are a danger to those in their care. I also do not believe that this person would necessarily be a risk. Nevertheless, in this case the employee may have deliberately lied and got fake documents to stay in the UK.

It is not good IMHO. It is also a shame that the employer did not try to get a WP years ago.

PP

VictoriaS · Post by **VictoriaS** » Fri Nov 16, 2007 1:41 pm

I think the CSCI have other things to worry about than whether or not a careworker has the right visa!

I do see your point, but I think that there are worse things someone can do. I know that I would prefer an elderly relative of mine to be cared for by someone who is kind, responsible and good at their job but illegal than someone who is legal or even British but mistreats people as many in the care industry sadly do.

This has got rather off topic now, sorry.

Victoria

Post by **PaperPusher** » Fri Nov 16, 2007 2:18 pm

Victoria

I don't think that the employee has shown herself to be responsible from what has been posted.

I agree with you that there are more important things, but I am still shocked because it appears to have been done so blatantly. If the employer had not been apparently so willing to employ the very competent and well regarded member of staff illegally for the last year, they may not have been in this mess now. I don't know what would be worse, if the employer knew all along, or the employee has been lying all along, or even that petergregory was ignorant of employers' obligations to prevent illegal working. A WP may possibly have been issued when she started working for this employer, but it is too late now.

VictoriaS wrote:I think the CSCI have other things to worry about than whether or not a careworker has the right visa!

The CSCI does check staff records as a matter of course, and also whether the staff can work in the UK legally in many cases. I have read too many CSCI reports I think!

Back to the OP and topic.

petergregory, I hope we have answered your questions. It is bad news.

Regards

Edited because I referred to the wrong person.

Docterror · Post by **Docterror** » Fri Nov 16, 2007 2:20 pm

... even that MartinKing was ignorant ....MartinKing, I hope we have answered your questions. It is bad news

PaperPusher, Sorry, but wrong guy to be addressing!

Post by **PaperPusher** » Fri Nov 16, 2007 2:25 pm

Docterror

Oh!

Thanks for pointing that out. petergregory, sorry about that.

Immigrationboards.com: Immigration, work visa and work permit discussion board

Retaining South African Employee

Retaining South African Employee

SA Employee

Re: Retaining South African Employee

Re: Retaining South African Employee