The relationship between Employment Law and Immigration Law can be tricky and awkward. They are two separate areas of law but it can get complex when they cross paths. In some scenarios, they may complement each other and other times, they create conflicting situations, making it dicey for employers.
Let’s first understand what both areas of law consist of.
Employment Law
Employment Law is concerned with the rights of employees or future employees at a workplace. Such rights include, rights to pay, rights to notice, protection from unfair dismissals, discrimination and so forth.
When employers breach the employment law, employees can raise a complaint at Employment Tribunals and Civil Courts. If the employee is successful, the employer may be ordered to pay compensation.
Immigration Law
Immigration Law is concerned with whether a person from outside or inside of the UK can join a UK based workforce which enforces immigration laws and rules. A basic requirement, according to immigration law, is that employees must possess the “Right to Work” in the UK. In general, if immigration rules are not followed, action will be taken by the Home Office against the employer and in some cases, the employee.
Can Employers Reject Applicants who do not have Right to Work in the UK?
According to immigration law, British and Irish Nationals can have any job assuming they succeed in the interview process and are offered the job.
For migrants, it is much more than just an interview process. Employers need to “sponsor” the migrant under one of the work visa categories satisfying and attaining the necessary points for job, salary, skill, and language so that a successful visa can be obtained. Before they can do so, the employer must apply and obtain a “sponsor licence” from the Home Office, which requires them to meet the various home office rules.
A simple, yet complicated question arises: Can employers reject applicants who do not already have the Right to Work in the UK?
Employment law comes into play in this scenario because it protects employees from being discriminated because of race, ethnicity, and nationality. According to employment law, all job applicants should have equal opportunity to get a job in the UK.
As you can see, immigration law and employment have crossed paths, creating a difficult situation for employers since they must comply with both areas of law.
Below is guidance from the Home Office for employers on how discrimination can be avoided and, at the same time, prevent illegal working
Employers should:
- be consistent in how they conduct right to work checks on all potential employees, even those who are British citizens
- make sure that selections are made based on the suitability for the post
- not discourage or exclude applicants, either directly or indirectly, because of their race, nationality and other such characteristics that they know or perceive
- not make assumptions about a person’s right to work based on their colour, nationality, accent, surname, race and other similar factors
- not check the status of only those who appear to be migrants
When called on to decide if discrimination has occurred, an employment tribunal will take the above factors into consideration.
Can employers justify a rejection policy?
In broad terms, indirect discrimination can be objectively justified if it is found to be a proportionate means of achieving a legitimate aim. Simply put, an indirect discriminatory policy may be considered lawful if the employer has a valid reason for doing so and if there is no other less discriminating way of achieving his aim.
For further information on this matter, please get in touch with our immigration solicitor by calling 01582 383888 if you are in Luton and 02034393888 if you are in London.
