Chefs Old and New - A rough guide to regulations

Posted on In Focus Dec 2011 - by Tandoori Editor
Chefs Old and New - A rough  guide to regulations

Changes are afoot for the restaurant sector, particularly for chefs in the UK. Maria Fernandes charts some changes that have taken place already.

 
The pace of change for the restaurant industry has been rapid and almost manic and unfortunately has been completely negative.
 
This will have a huge impact on the industry. The changes have dragged the industry back in time to the period when Chefs were not recognised to be a shortage profession or skilled and work permits were restricted to “high class establishments.” There is no doubt that there has been abuse of the system and that as a result the industry has been tarred with the same brush. 
 
By the time this article is publi-shed the deadline for responses to the Migration Advisory Committee will be closed and the issue may result in either restricting or stopping the entry of Chefs.
 
OUT-OF-COUNTRY APPLICATIONS
Allocation request
Certificates of Sponsorship are subject to an annual limit of 20,700 and released on a monthly basis. Where the allocation is not used fully it is rolled over to the next month. In the first month the take up was so low that 3,181 were transferred to the following month. There are 5,365 certificates available for June as a result of the allocation not being fully used. 
 
Since the 6th of April only the follo-wing jobs remain on the shortage list :
• Skilled chef where: 
- the pay is at least £28,260 per year after deductions for accommodation, meals etc, and 
- the job requires five or more years relevant experience in a role of at least equivalent status to the one they are entering, and 
- the job is not in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service, and 
- the job is in one of the following roles:
• Executive Chef - limited to one per establishment 
• Head Chef - limited to one per establishment 
• Sous Chef - limited to one for every four kitchen staff per establishment
• Specialist Chef - limited to one per speciality per establishment
 
The first issue is that regardless of whether the person is a Head Chef, Sous Chef or Specialist Chef the minimum salary is the same. Is this fair? 
 
The excluded groups are fast food outlets and standard fare outlets. A fast food outlet is described as one where food is prepared in bulk for speed of service rather than to individual order. 
 
A standard fare outlet is one where the menu is designed centrally for outlets in a chain and where sauces are bought ready made rather than prepared from fresh raw ingredients. There is a Hindu temple
desperate for a chef to head the production of over 2,000 meals a week. They have strict religious rules on the preparation of food and the restrictions of ingredients. Their case has been rejected on the basis that the preparation is standard.
 
The Code of Practice and the way it is being operated suggests the re-introduction of the concept of high class establishment. 
 
Employers have been up in arms over the fact that they provide buffet services and have been rejected on this basis. They have two restaurants and this is considered to be a chain. The restaurant in question is a trendy new concept restaurant which caters for the younger crowd. If a buffet is a reason for disqualification this would mean that every hotel in London would be rejected.
 
And as for a take away service nearly every ethnic restaurant offers a take away service. Surely the rule should be less about whether it offers a takeaway service and more about to what extent it does.
 
Post allocation
After the allocation is granted the next process is to apply for entry clearance. The applicant must score 50 points. 30 points are awarded for a shortage position or for passing the resident labour market test. Points are also awarded for salary. The minimum points for salary must be 20 points. A further 10 points is awarded for maintenance and 10 points for completing the appropriate English test. 
 
IN-COUNTRY ALLOCATIONS
In-country applicants have to apply for an allocation but the rules are considerably relaxed.
 
Those who are already in the country by the 6th of April either as Work permit holders or as Tier 2 (General) applicants, whether they are extending their stay with the same employer or are changing employment, will be exempt from the annual limit, the new graduate level job requirement (as set out by the new Code of Practice), the new salary threshold (in the new Code of Practice) and the new English language level (found in the Immigration Rules). 
 
Applicants changing jobs in the UK will continue to be subject to the old salary and skill levels set out in the Code of Practice which existed prior to the changes with one major difference. The position is no longer considered to be a shortage job and that therefore these positions are subject to the labour market test i.e have to be advertised.
 
Employees who remain in the same job but are applying simply for an extension will not have to undergo the labour market test.
 
Post allocation
Extension applicants are exempt from the requirements and are automatically awarded 50 points and a further 10 points for maintenance and 10 points for English tests. Where applicants are already Tier 2 (General) applicants they will also automatically be awarded points. Work permit holders however will need to meet the English language requirement.
 
Indefinite leave to remain
When it comes to settlement a new requirement to watch out for is the fact that the applicant must earn the rate as set out in the old Code of Practice even though they may have entered with work permits or under Tier 2 rules on a lower salary. Many employers are unaware of this change.
 
These regulations have become unnecessarily complicated and need to be considered carefully before applications are made.
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