The Question
I’ve had applications for full-time permanent positions from applicants who are on a Post Study Work (PSW) Visa and so only eligible to work for two years before they would have to change status.
I’m assuming that there is no guarantee that new visas would be granted, so is this a valid reason, during the selection process, to turn applicants down, given that the job details stated applicants must have the right to live and work in the UK?
Legal Advice
Esther Smith, a partner at Thomas Eggar
You do risk a discrimination claim if you decline an applicant for a position simply on the basis that they cannot work for you under their current visa for more than two years.
There is a big risk, if this is your only basis for rejection, that they would argue selection was based on their race or nationality because it would affect their visa status.
If you are going to reject candidates on this basis, it may be better to try and come up with more plausible (or potentially less discriminatory) reasons for rejecting them compared with other candidates.
There is also a practical point to be made, which is that you may be limiting your access to the best and most talented people for the vacancies you have if you are writing off candidates with only temporary visas.
They may prove to be excellent employees and may stay with you longer than people who have the ability to work permanently in the UK. Moreover, they may have no difficulty in securing another visa in two years’ time.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
Gemma Goodhead, a solicitor at Speechley Bircham
Tier 1 (Post Study Work) is a UK immigration permission, which may be available to students who have completed a degree in the UK in the last 12 months.
The Tier 1 (Post Study Work) permission grants the individual two years’ leave to remain and work in the UK, but there is no possibility of extension. This means that an individual would have to apply for an alternative UK immigration permission to enable them to remain and work in the country.
Although there is no guarantee that they will be granted a new UK immigration permission in two years’ time (on expiry of their current UK immigration permission), case law (Osborne Clarke Services v Purohit UKEAT/0305/08) suggests that employers cannot rely on this as a reason to refuse a job applicant.
The problem is that it may constitute discrimination on the grounds of race and/or nationality. The Osborne Clarke case referred to the Code of Practice on Racial Equality and Employment, which states that selecting an individual should be based on merit alone.
The case also showed that employers must check the right to work of their prospective workers before they start employment (and for those with limited leave to remain, every 12 months). But it is not for them to "second-guess" the UK Border Agency as to whether an individual would be granted the relevant immigration permission when they come to apply.
It may be useful to note that, under current rules, when the Tier 1 (Post Study Work) migrant’s leave expires, if an employer is registered as a licensed sponsor under Tier 2 and the individual has worked for them for more than six months, they may be able to switch their immigration permission (to be sponsored under Tier 2) without their employer having to advertise the role first.
In any event, however, Tier 1 (Post Study Work) will be closed to new applicants from April 2012.
Gemma Goodhead is a solicitor at Speechly Bircham LLP.
2 Responses
I am in the UK on a Spouce
I am in the UK on a Spouce visa which has to be re-applied for every 2.5 years (issued twice). My current one is valid until end of October 2020, and unfortunately there were a few situations in 2020 when I have received a job application rejection even from big companies such as Metro Bank as they have required the visa to be valid for the next 12 months. I am not ever sure on how to react and what to say when I hear such requirements stated to me as legally there should not be any limitations for me to be employed as long as I am suitable for the role requirements. But practically it works in a different way.
I am Ashokvardhan Purohit,
I am Ashokvardhan Purohit, who had changed the law and brought clarity regarding the immigration status used to vetted out aspiring applicants in the selection process. I have single handedly argued and won the case and defended my victory, and there is only one thing that I have observed during the entire time till date… Every one had been and has been doing it incorrectly ranging right from the law firms to the recruitment website. The changes in the immigration policy are all being highlighted however, the real fact of the matter is not addressed that no one can segregate applicants from making a job application, as the requirement for the job is for the best candidate who can get the job based on his merits and not on the basis of his geographical location, as the work permits are means to overcome these barriers. Every article highlights about the changes in the immigration rules, however, no website has explicitly ever stated that it is still mandatory to select applicants based on their merit irrespective of their possession of a work permit. It seems that somehow there is a fear which has been embedded in the hearts of all the recruitment agencies that if this criteria is removed then there is going to be floods of applications. Well they certainly will be, as it is a job that requires the best candidate for the job and not the best local candidate for the job. Lots to write as these arguments had gone on for months on this legal point, which I came to realize that it was worth fighting. Advertising and writing the incorrect procedures will not make it a legal act. If any further clarification is required. I would be more than happy to help and assist. You can always email me on [email protected] All The Best!