U.K. immigration changes could affect industry

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Immigration law has once again become a hot topic in the U.K.'s entertainment industry. The country's immigration system is the middle of its most extensive overhaul in the past four decades, changes that will undoubtedly affect the arts and entertainment sector.

The new rules are still in the proposal stage, but it's clear that reform will see the integration of immigration, customs and visa agencies under a new U.K. Border Agency, which in March will launch the new Points Based System. This will affect the routes through which actors, directors, producers and technicians will have the opportunity to work on U.K. film productions.

Current standards

Under the current system, about 20 film industry workers obtain work permits each month. Caseworkers typically issue permits to actors already established in the field. Applications are often sent for consultation to Equity to ensure that foreign actors do not displace the resident labor force.

Similarly, work permits for technical support staff are issued to technicians of the highest caliber with the Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU) acting as the consultation body. Under a concession outside the published rules, film actors, producers, directors and technicians employed by an overseas company may be allowed to work in the U.K. without a work permit as long as they come to the country only for location sequences (not sound stage or studio work). For instance, film crews working on David Cronenberg's "Eastern Promises" and Robert Weide's "How to Lose Friends & Alienate People" may have recently taken advantage of this concession.

Upcoming changes

Under the new plan, these concessions -- along with caseworker discretion -- will almost certainly become a thing of the past. The new system aims to be robust and objective. It consists of five tiers, with Tier 2 for skilled workers such as entertainers working under contract and Tier 5 for temporary workers such as entertainers coming in on short-term assignments.

Foreign entertainers wishing to enter the U.K. will be asked to undergo self-assessment under narrowly defined criteria. These are likely to include qualifications, work experience and English language proficiency. Recruiting organizations in the U.K. will act as sponsors. If approved, sponsors will be entered on the Sponsor Register -- divided into A and B categories -- and be subject to strict compliance procedures.

This means sponsors will play a greater role in the immigration process. One of their responsibilities will be to issue individual or group certificates of sponsorship through the Sponsors Management System, showing the job title and salary. In the eyes of an immigration official, this will act as an assurance of an entertainer's ability and intention to do the job. Sponsors will be able to delegate authority by appointing representatives who will exercise a set level of control.

The five-tier scheme has been more than two years in the making. The policy framework initially was criticized for not reflecting the specific position of the arts and entertainment sector. The National Campaign for the Arts, an independent lobbying organization, encouraged its members and other organizations to voice their concerns about increasing costs, the new sponsorship system, biometric data collection and the time length allowed under Tier 5.

Sponsor requirements

Following a series of meetings, the Arts and Entertainment Taskforce was set up in May 2006 with the U.K. Film Council (UKFC) and Equity becoming members. It was established in recognition of the impact of the new system on the U.K. arts and entertainment sector to act as an advisory body to the Home Office on matters of sector-related policy.

In November 2007 the Government published a statement of intent outlining sponsorship criteria, evidence required to qualify for a license, and describing circumstances in which a sponsor may be penalized or refused a license.

The statement pointed out that Tier 5 will include a category for 'creative workers' which will be divided into four specific areas: dance, film and television, theatre and music. Good practice guidance is currently being drawn up by the industry representatives. With respect to 'skilled workers' under Tier 2 in the arts and entertainment field, sponsors will be required to comply with a code of practice on protection of the domestic labor market.

As employers, sponsors will be asked to perform specific duties and bear legal obligations such as carrying out checks on employees to prevent illegal working. Their behavior and compliance will be monitored and effectively determine their rating. Non-compliance may lead to a license being withdrawn or the sponsor being downgraded to B-rating.

In order to discourage illegal working, the government will introduce civil penalties for employing illegal migrants. The statutory maximum civil penalty is £10,000 for each illegal migrant. In addition, there will also be a new criminal offense carrying a maximum two year prison sentence and/or an unlimited fine.

Ultimately, smaller businesses such as independent production companies may find it most difficult to navigate the new compliance-driven system. It is of some concern that responsibility for complex application and licensing procedures is being passed onto the business community. It is possible that many will find additional administrative and infrastructure costs too demanding.

More than £420 million was spent on making films in the U.K. in the first half of 2007, with £324 million coming from the U.S. The top two U.K./U.S. co-productions of the year, Warner Bros' "Harry Potter and the Order of the Phoenix" and Universal's "The Bourne Ultimatum" together have grossing £71.65 million in the U.K. alone.

While the new immigration system is unlikely to have a noticeable impact on box office, will it make the U.K. less of an attractive destination for foreign productions? It is essential that Fortress Britain keep its borders open for actors, directors and film crews who enrich its local film industry.

Elena Tsirlina is a solicitor at Fransman Solicitors, a London-based firm specializing in immigration and nationality law. She handles a variety of business immigration, human rights and nationality matters, including those in the arts and entertainment industry.
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