3 Oct 2016

The UK’s increasingly international workforce has the highest proportion of migrant workers since immigration law developed. Combine that with the growing complexity of immigration and employment law, and it is unsurprising that risks are greater than before.

Here are some examples of immigration issues in the recruitment cycle, and what can go wrong. To make the law work for you rather than trip you up, have an immigration compliance policy which covers recruitment, keep it updated and refer to it when you recruit.

Your Policy should include: 

Non-discriminatory approach to applications

Consider all applications on their merits first and only then worry about immigration. A blanket rejection of candidates who are or might be subject to immigration control and require sponsorship is indirectly discriminatory on the grounds of nationality (Osborne Clark Services v Purohit, [2009 EAT]).

Compliance with the law on immigration sponsorship

If you are a licensed sponsor and may need to sponsor a migrant worker in a role, remember that you may also need to conduct a Resident Labour Market Test in accordance with the current Tier 2 & 5 Sponsor Guidance. You need to know how to do this properly. It will include:

  • Advertising the role, its duties and the skills and experience genuinely required for it, in the format and medium required by the Standard Occupational Classification Codes and for the correct time period, and retaining evidence of the advertising;
  • Consider all applications against your genuine skills, qualifications and experience criteria as advertised;
  • Only reject resident candidates at the initial stage if they do not meet the criteria as set out in the advertisement;
  • Only seek sponsorship of a non-EEA migrant subject to immigration control if there is no suitably qualified and experienced resident candidate available – irrespective of whether the migrant is your preferred candidate; and
  • Document your selection process thoroughly and retain clear evidence of your reasoning for possible future Home Office inspection.

Non-displacement of resident workers

As well as the Resident Labour Market Test as set out above, it is a breach of the sponsor licence terms to create a vacancy for a migrant by making a settled worker redundant.

Prevention of illegal working 

The Code of Practice for employers on preventing illegal working explains the civil penalty scheme for employers and sets out how to conduct compliant pre-employment document checks. This code of practice was reissued in May 2014, along with the Code of Practice on preventing unlawful discrimination in doing so. Is your Policy up to date in this respect, and are you using the new Codes? If not, you may no longer have the statutory excuse against a civil penalty because, for example, the documents you have been relying on are no longer on the updated list. If your processes are not up to date, you may also be in breach of your sponsor duties if a licensed sponsor – and unwittingly acting in a discriminatory way.

  • Review the new Codes of Practice and make sure that your policy is reviewed and updated to reflect them.
  • Note that the Code of Practice on avoiding discrimination is admissible in the employment tribunals. It contains new recommendations in relation to diversity monitoring. See our recent article on the new prevention of illegal working rules.

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