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:
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, it is 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 it is 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:
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.
- 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, it is 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 it is 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.
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.
ii.
a. Employed persons whose employer is based outside the Island; and
b. Self-employed persons from outside the Island;
b. 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?
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
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 it is 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:
10. The main differences between short-term and "essential" licences can be summarised as follows:
11. Limitations apply to short-term licences as follows:
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.
9. There are three types of "employment related" Housing Licences:
i. A short-term licence valid for up to 9 months for temporary or seasonal work;
ii. A short-term licence valid for up to 3 years for work which is not regarded as fully essential by the Housing Department; and
iii. An "essential" housing licence.
ii. A short-term licence valid for up to 3 years for work which is not regarded as fully essential by the Housing Department; and
iii. 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.
- "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").
- 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). 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.
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.
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) 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".)
24. Such applications should be made on the standard licence application form (download form here) 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".
- 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.
29. Employers wishing to extend the duration of a licence should make application to the Department by letter, setting out the reasons why the extension is required. As with the initial application it is advisable to copy the letter to the relevant States’ Department or Regulatory Body, from whom the Department is likely to seek advice before reaching a decision.
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.
29. Employers wishing to extend the duration of a licence should make application to the Department by letter, setting out the reasons why the extension is required. As with the initial application it is advisable to copy the letter to the relevant States’ Department or Regulatory Body, from whom the Department is likely to seek advice before reaching a decision.
General Comments on Essential Housing Licences
30. 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.]
31. 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.)
[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.]
31. 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
32. 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.
33. 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.
33. 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
34. 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.
35. 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.
35. 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.
(For more details on the open market - click here)
Further Information
36. Further information on all the above points, and on the Housing Control and Right to Work Laws generally, can be obtained by contacting the Department's Housing Control section - telephone 715790 or email: housing.control@gov.gg.
These notes are for general guidance only and must not be regarded as a complete and authoritative statement of the laws on any particular case.