Employing Creative (Temporary) Workers under Tier 5 of the Points-Based System

We might not think of professionals who perform in theatre, television and film as “creative workers” but this is how they are classified under the UK Border Agency’s (UKBA) Points Based System.  Strict rules apply as to employment of performing artistes and their entourages, and these rules have to be adhered to, whether a venue wants to engage a ballet dancer or a stuntman.

The main points for performers and venues to bear in mind with regard to the “Tier 5” category are these:

The employer of the performer needs to have a “sponsor licence” under the UKBA sponsor licensing scheme.   In order to obtain one, they need to make a formal application, during the course of which they must be able to demonstrate to the UKBA that they are an organisation operating lawfully in the UK, and that they will comply with their “sponsor duties” to monitor migrants throughout their engagement in the UK.

Once this hurdle is overcome, and the UKBA are satisfied that the employer has their systems in order, the licence should be awarded.  The employer is then in a position to award “certificates of sponsorship” to individual (or groups of) performers, under Tier 5, for temporary engagements.

The employer needs to think carefully about their needs in putting a production together, and work out the time periods involved.  If the engagement is short term, Tier 5 of the PBS is likely to be the appropriate route.

The UKBA have classified all jobs (including creative ones) by way of the “Codes of Practice” currently set down at “Appendix J” of the Immigration Rules (see www.ukba.homeoffice.gov.uk).  Each type of job is issued with a Code, and certain requirements are stipulated for advertising these rules throughout the EU, so that domestic labour is not unfairly prejudiced.

However, it is recognised by UKBA that creative work is a special case, and there are many exemptions to the requirements to carry out a “resident labour test” by advertising the job throughout the EU through certain specified media.  Briefly, these are as follows:

Ballet Dancers:

For ballet dancers engaged on a short term basis, and provided it can be considered that they are “deemed to be making an additional contribution to the UK labour market” the prospective employer needs to first check that the proposed payment is equal to industry standards (check this at www.equity.org.uk; www.itc-arts.org; www.solt.co.uk; and www.tmauk.org).

For the post to be exempt from the requirement to advertise to the resident labour pool (ie throughout the EEA)  it must then be shown either:

• The dancer is required for continuity (having already worked in the same production outside of the EU for at least one month during the past year);
• The dancer has international status;
• The dancer is engaged by a unit company (i.e. the dancer has already appeared outside the EU in at least one production of that company);
• The dancer is recruited from a specified school for a specific company (eg, the English National Ballet School for English National Ballet).

If at least one of these requirements is met, and the ballet dancer meets the other requirements for being issued with a Certificate of Sponsorship (i.e. they can prove that they have a certain level of maintenance available to them) the employer can issue them with a “COS” and they can travel to the UK to perform in the production.  If the ballet dancer is from one of the listed “visa national countries” they will need to apply for a visa before they come, and all other prospective Tier 5 temporary creative workers also need to apply for entry clearance from overseas before arriving in the UK, unless their engagement is for less than three months.

If one of the above criteria cannot be met, the job must first be advertised in at least one of the following:  The Stage, Dance Europe, The Spotlight Link, Dancing Times, or Equity’s Job Information Service.

For other types of dancers, there are similar provisions to exempt employers from carrying out the “resident labour test”.  It must be possible to establish that the dancer is “deemed to be making an additional contribution to the UK labour market”.  This can be achieved in several different ways, eg, by showing that the “dancer is required for continuity”, i.e. they have already been involved in the same production overseas outside the EEA.   Strict proof will be required by UKBA, which could be achieved by demonstrating, for example, press cuttings or other paperwork related to the overseas production (programmes, or a contract of employment, for example).

If the dancer is internationally known, this will also demonstrate that they can make an additional contribution to the UK labour market, and a resident labour test would not then be necessary.  However, the UKBA requirement for establishing this status is that the dancer concerned must be “famous”.    Alternatively, if the dancer is not famous, but can show that they perform in a particular style that is not available in the EEA, an exemption from the resident labour test may also be established, provided it can be shown that the employer in the UK does need to engage a performer in that style for a certain production, and that the performer concerned fits that category.

If the dancer cannot be established in one of these categories, the prospective employer must advertise the post in one of several specified media, which include “The Stage” and “Dance Europe”.   Regardless of whether the employer can claim an exemption from advertising or not, the pay must meet the appropriate industry standard.

Creative roles in Film and Television

There is also the requirement to advertise these roles, and to pay the appropriate industry standard.  Similar exemptions to the advertising requirement apply as to dancers; however the pay must always be commensurate.  Where the work is required for continuity and where a performer is of international status, the prospective employer will be able to benefit from the advertising exemption.

Additional exemptions are available on the basis that the proposed performer has a “highly specialist or unusual role” which could not be fulfilled, e.g. a requirement for a particular language skill.  A “reasonable search” throughout the EEA will still be required, but the UKBA will accept a limited search which is “proportionate to the rarity and specialty of the attributes of the role”.

If the employer can argue that the performer qualifies as a “featured guest” in an established programme, or where the finance for the production depends on that particular performer being part of the production, an exemption can also be applied.  Alternatively, where it can be shown to be “commercially important” that a certain performer is employed, an exemption may be applied, but in those cases the sponsor is required to notify Equity in advance and explain the reasons applicable.

Theatre and Opera

An exemption from the requirement to advertise may be applied in the case of these performers   where they are needed for continuity, they have international status, they are members of a unit company which has been booked, or they possess a particular attribute unavailable in the EEA.  In addition, in the case of theatre performers, exchange schemes exist between the UK and USA and Australia, which may provide a route into performance without the requirement for prior advertising for an EEA worker.

Other workers in film and television

For non-performing roles, it is possible to bring in creative workers from outside the UK.  Again, the general requirement to advertise applies, unless it can be shown that there is an applicable exemption.  These exemptions include cases where the worker is a “Senior Creative Grade”, e.g. a Producer or Director, script writer or composer.  It may sometimes be possible to issue a Certificate of Sponsorship to the PA to a Director, provided certain criteria can be met.   Proof of a previous track record in these roles will be required.

Other exemptions from the requirement to advertise for these workers includes where they are needed to satisfy production continuity, i.e. where the worker can show that they have a “direct working relationship with a Senior Creative Grade” (see above).  Other exemption possibilities include highly specialist roles and international co-productions.

In all cases where an exemption from the advertising requirement is considered to apply, the UKBA will require the prospective employer to provide evidence of their arguments in support of exemption.  Certificates of sponsorship should not be issued by licensed sponsors in breach of this requirement, and the related evidence should be retained carefully on the file, as breaches   may result in revocation of the Sponsor’s licence.  If this occurs, all existing holders of Certificates of Sponsorship for that employer will be cancelled, and the workers concerned will lose their right to work in the UK.

For any of the above roles, where it cannot be shown that an exemption from advertising is required, the sponsor must consider whether formal advertising would normally be the usual practice in relation to that role.  In such cases, it is acceptable for the prospective sponsor to use more informal recruitment practices (e.g. speaking to agents) for a minimum period of two weeks.  However, if it would be normal practice to use formal advertising, and where no exemption applies, a formal advertisement must be placed in the appropriate media (depending on type of role).

For advice or assistance with preparing an application for entry clearance or leave to remain in the Tier 5 Temporary Worker (Creative) category then please contact our immigration barristers in Covent Garden, London direct on 0203 617 9173 or by email info@richmondchambers.com