# Discrimination: Tier 2 Visa sponsorship?



## niomi (Oct 9, 2012)

I'm trying to switch from a Tier 4 (General) to a Tier 2 and have been having trouble because most companies and recruiters balk at the idea of sponsoring my visa. I've checked with my university and according to them this is actually discrimination and companies should not actually be asking about your visa status until AFTER they have offered you a position - it should not prevent me from getting to the interview stage.

There's apparently a court case precedent for it from 2009; you can see it if you google 'Osborne Clarke discrimination'.

Does anyone know how I could use this information to at least get to the interview stage?

I regularly get callbacks from recruiters very interested in my applications. I'm trying to work with companies/recruiters and explain to them that I: 1) do not need to pass the residence labour test; and 2) can start working full-time right away while I apply to switch -- but still they say 'we do not want to bother with sponsoring you when there are other suitable candidates who do not need sponsorship'.


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## lovestravel (Apr 9, 2012)

I don't know all the rules but going through this process with my husbands current company there is a lot of paperwork and expense in order for a company to get a sponsorship license. I don't think you can force a company into sponsoring you. It is any companies responsibility to check the ability for a worker to legally work in the country so I don't think that question is out of line at all. They have a legal responsibility to check your status. My husbands company was able to do a intra company transfer because they are based in the us and he has been employed by them for over 2 years. If a company wanted to hire a new employee there are so many steps they have to go through to prove they were unable to hire a local citizen. I will dig up the document we got explaining sponsorship and post the information so you can see for yourself how hard it is to even qualify for sponsorship license for businesses.


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## lovestravel (Apr 9, 2012)

Not to mention the expense. I don't know for sure but I would guess the company will spend close to $100,000 to move us and sponsor him. That doesn't include all that we are personally spending for our own representation and moving expenses. Ours is a special case because they have messed things up but it takes at least 4-6 months to get a sponsorship license unless they do the expedite. It is quite involved.


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## lovestravel (Apr 9, 2012)

Here is the information letter the attorney sent us about sponsoring workers:

SPONSOR LICENCE COMPLIANCE REQUIREMENTS 

The following sets out the compliance requirements for licenced sponsors under Tier 2 of the Points Based System. The specific areas which are monitored by the UK Border Agency (UKBA) include:

	Recruitment 

	Monitoring, Record Keeping and SMS Reporting 

	Illegal Working 

It is intended to be used both as a guide to the areas and responsibilities for compliance and also in preparation for the pre-licencing visit and announced and unannounced post licencing visits from the UKBA. It includes some example questions compiled from previous UKBA visits to give the Authorising Officer (AO) an idea of the type of questions which may be asked. 

In addition to the key duties set out below, it is important the AO understands the principles underpinning the sponsorship system. The system delegates a considerable amount of responsibility to employers. This includes responsibility for determining whether a role can only be filled by a non-EEA national. It also includes responsibility for monitoring the activities of any sponsored employees and reporting any areas of concern to the UKBA.

The UKBA has an oversight function and can at any time review the recruitment procedures and decisions made as well as check that the sponsor has complied with their duties in respect of monitoring, reporting and record keeping. Where a sponsor is a new start up, the UKBA are particularly concerned to check that the processes are in place to enable the sponsor to comply with these duties. 

Recruitment 

All documents relating to the recruitment process where the Resident Labour Market Test (RMLT) has been satisfied will need to be kept for the duration of the migrant’s employment or until they have been inspected by a visiting officer, whichever is longer. This would be the case for any sponsored employees who had NOT previously worked for a linked entity overseas for the 12 months immediately prior to the transfer to the UK. 

In these circumstances, unless the proposed employee would be earning more than £150,000 or the role was on the Shortage Occupation List (a prescribed list of jobs where the government considers there is a shortage of individuals who are qualified to fulfil the roles) the role will have to be advertised to satisfy the RLMT in the UK. The advert must be placed for 28 days in two different sources (one is almost always Job Centre Plus) and any applicants that apply will need to be genuinely considered and records kept of the reasons why any applicants were rejected. If the proposed employee will be earning £70,000 or more then the advert need only be placed in one source and additional advertising in Job Centre Plus is not required.

For a Tier 2 General Migrant you would need to retain the following: 

	Detailed job description 

	Copy of the relevant code of practice (SOC code) 

	Any other document specified in the SOC code

	Copy of advertisements used to satisfy the RMLT including a copy of the adverts as they appeared in the given medium and showing the title and date of the publication and closing date for applications. For online applications, you will need to retain a screen shot from the website. This will also be the case for any adverts placed with Job Centre Plus

	Where it was a requirement within the job advert – copies of any qualification held to confirm skill level 

	All applications shortlisted for final interviews as they were received, eg. CVs, application forms etc 

	The names and numbers of applicants short listed for final interview 

	Notes from the final interviews conducted for each EEA/British national who was rejected and reasons why they were not offered the job. 

Where the employee you wish to sponsor has worked for a linked entity for the last 12 months, you will not need to advertise the position and can sponsor the individual under the Tier 2 (Intra Company Transfer) category but you would still need to retain the following for a Tier 2 (ICT): 

	Detailed Job Description 

	Copy of the relevant code of practice (Standard Occupational Classification Code (SOC code)) 

	Any other document specified in the SOC code 

	Evidence the migrant had been employed for 12 months preceding the application by a linked entity. This is normally satisfied by retaining 12 months of payslips. 

The SOC Codes provide details of the suitable advertising mediums and salary ranges for different types of employment and we will work with you to establish which SOC code is most relevant. 

Please note that from 14th June, employers will only be able to sponsor migrants for roles at or above NQF level 6. 

Examples of Recruitment Questions: 

As well as explaining the systems in place for storing this information, the AO may be asked questions on the following related topics: 

1. Why do non-EEA migrants need to be recruited? 

2. How is the recruitment process normally conducted? 

3. How are candidates assessed? 

4. Do you keep copies of CVs? For how long? 

5. Have you advertised and how? 

6. Who will be responsible for assigning any certificates of sponsorship? 



Monitoring, Record Keeping and SMS Reporting 

As a sponsor, you will be responsible for reporting certain information about any sponsored employees. Once registered as a sponsor, you will be provided with log in details for the Sponsor Management System (referred to as the SMS). This is the system used to request and assign Certificates of Sponsorship and also to report migrant activities and also any changes to the Sponsor Licence. 


The Sponsor’s duties with regard to reporting on migrant activity will include the following: 

	Where the migrant fails to attend their first day of work, this must be reported on the SMS within 10 working days of the first day of work

	Where the migrant is absent from work for more than 10 consecutive working days without your reasonably granted permission, this must be reported on the SMS within 10 working days of the 10th day of absence 

	Where the migrant’s contract of employment ends, this must be reported on the SMS within 10 working days of the event 

	Where the migrant moves into another immigration category and no longer requires sponsorship or the migrant’s permission comes to an end, this must be reported within 10 working days 

	Where there is a significant change of circumstances in the migrant’s role such as: 

o	Change of job tile/duties, including promotion 

o	Change of salary (not including annual increments or bonuses) 

o	Change of main work location 

o	Change of length of employment contract 

These changes must be reported within 10 working days. Further, if the change is so substantial that the person is doing a different job with a different SOC code, a change of employment application will need to be made before the person can start the ‘new’ job). 

Where you have information the migrant is breaching the conditions of his leave, this must be reported within 10 working days.

In addition, as mentioned above, if there are any significant changes in the sponsor’s circumstances i.e. if the business became insolvent, stopped trading, substantially changes the nature of the business or is involved in a merger, these changes must be reported on the SMS within 28 calendar days. 

The following documents will also need to be retained on the migrant’s HR file. These files need to be stored in a secure location - generally this is a locked filing cabinet in a secure location, such as an office with restricted access. They can also be kept in a secure online database. The AO will need to have easy access to these documents as they will need to be able to show them on short notice if the UKBA make an unannounced visit. These documents are in addition to the documents relating to recruitment specified above. 

Documents to be retained for Tier 2 General migrant 

	Copy of migrant’s passport (front cover, details page, copy of visa endorsement). The copy should be signed and dated to show it was taken before the migrant started work 

	Copy of UK Biometric card, where applicable (now issued to migrants who make any application in the UK) 

	Copy of migrant’s NI number 

	History of migrant’s contact details and current contact details 

	Up to date record of migrant’s absences 

	Copy of contract of employment and any subsequent changes – including salary details (base salary and any allowances), period for which gross pay is awarded, names and signatures of all relevant parties, start and end dates of employment and hours of employment and job description. These details should match the information in the Certificate of Sponsorship

	Copies of any registration/professional accreditation documents the migrant is required to have in order to do their job – e.g. Practising Certificate from the Law Society 

	Copies of documents confirming the correct rate of pay (such as payslips)


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## lovestravel (Apr 9, 2012)

part 2:

Documents to be retained for Tier 2 ICT migrant 

	Copy of migrant’s passport (as above) 

	Copy of UK Biometric card, where applicable (now issued to migrants who make any application in the UK) 

	Copy of migrant’s NI number 

	History of migrant’s contact details and current contact details 

	Up to date record of migrant’s absences 

	Copy of contract of employment and any subsequent changes – including salary details (base salary and any allowances), period for which gross pay is awarded, names and signatures of all relevant parties, start and end dates of employment and hours of employment and job description. These details should match the information in the Certificate of Sponsorship 

	Evidence the employee had been employed by the sponsor for the required period (normally 12 months) before applying as an ICT in the form of payslips 

	Copies of any registration/professional accreditation documents the migrant is required to have in order to do their job – e.g. Practicing Certificate from the Law Society

	Copies of documents confirming the correct rate of pay (such as payslips) 

	One way to ensure that you are compliant with the requirement to maintain up to date records, is to make it a contractual requirement either in the contract of employment or the employee handbook, that an employee keeps you informed of any changes to their address or telephone number or immigration status. 

Examples of Monitoring, Record Keeping and SMS Reporting Questions 

1. If a sponsored migrant did not turn up for work on the first day, what would you do? 

2. How would you know if a sponsored migrant changes their contact details, such as their home address? 

3. Can you check their personal details? 

4. What is the sickness policy? 

5. How do you monitor absences and sickness? This question is VERY important and the UKBA is focussing on this at the moment in their visits so it is vital that the AO can confirm a policy on this, ideally in writing. 

6. What documents would you keep on file for sponsored migrants? 

7. Can we see an HR file? 

Illegal Working 

This relates not only to sponsored employees but to all employees. In order to ensure that you are protected, certain checks need to be conducted to ensure that employees are not working without permission to do so. 

You must ensure that before anyone starts work, a ‘right to work’ check is carried out. This involves inspecting original documents to determine whether the person has the right to work for you in the UK. If you are satisfied they do have the right to work, you need to take a copy of the documents checked. The copies should be signed and dated to show that the check was done before the employee started work. A copy of these documents should then be kept on the employee’s file. In order to ensure that no discrimination arises in the recruitment or employment process, you should request the relevant documents from all prospective employees before they start work. 

The UKBA summary guidance on illegal working which has a list at pages 14-17 of documents that are and are not acceptable as proof of the right to work is attached for your reference. This is the UKBA checklist and employers usually find it is useful to annex it to the offer of employment letter. The offer of employment should be conditional on an employee providing evidence of their right to work with reference to this list.

In addition to this pre-employment check, you must carry out an annual check on any non-EEA national employees with limited leave to remain. It is important that you have a system in place to notify you when this annual check is due and ensure that the original documents are inspected and a record kept of this check. 

It is usually a term of the offer letter that the employment is subject to the employee having the correct permission to work in the UK. 

Finally, it is important you have a system in place to record and track when a person’s leave is due to expire to make sure an application for an extension is made or if not, the relevant action is taken to ensure the migrant does not remain in the UK with no valid permission to do so. 

Examples of Illegal Working Questions 

1. How do you confirm that a new member has the right to work in the UK? 

2. Who does these checks and when? 

3. Do you carry out any further/ongoing checks? If so, when and for who? 

Other issues

The AO may also be asked more general questions and should consider responses to the following questions: 

1. A brief history of the sponsor internationally and domestically (if applicable) 

2. Some information about the type of work the organisation carries out 

3. To provide a chart showing the structure of the UK organisation and to identify where, within that structure, the employees you are looking to sponsor will fit in 

4. The salary levels sponsored employees are likely to be receiving 

5. Whether there is a contingency plan in case there is a disaster which affects the running of the business (e.g. Natural disaster, terrorist attack e.t.c) 

6. What are the usual working hours? 

7. What are the annual leave entitlements? 

8. Who arranges payroll and the necessary administrations? 

9. Is there a written policy on health and safety? 

Please also note that the visiting officer is likely to ask to see the original documents submitted with the Sponsor Licence application and the most up to date business bank statements. 

The above is not a comprehensive list of issues that will be discussed or questions asked but should give an AO an idea of the sorts of things to expect and what he needs to know as well as informing him more generally about the nature of the enquires that will be made. We would strongly advise the AO to ensure there are written policies for the main areas of interest. It is more effective and easier for the AO to provide copies of written policies at the pre-licencing visit then to just discuss them. He can of course expand, but written policies can ensure all the main areas are covered.


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## lovestravel (Apr 9, 2012)

Here is the pre-licensing questionnaire:

PBS Licence Registration


Pre-licensing Questionnaire


Area 1 – Monitoring Immigration Status and Preventing Illegal Employment

To ensure that the prospective sponsor is able to comply with the requirements of the Immigration Rules to retain copies of passports in line with the 2006 Act, not to employ anyone illegally and to monitor the immigration status of their sponsored migrants.


How do you confirm that your prospective employees have the right to work within the UK?


When are these checks completed and by whom? Are they part of your standard recruitment practices?




What types of documents do you retain as evidence that your employees have the right to work within the UK?


How do you continue to ensure your employees have the right to work within the UK? Do you record and monitor the leave to remain dates and immigration status of your staff and if so how?



-Do you only maintain these records to monitor the position of work permit holders, or do you keep track of the status of all non-EEA nationals with limited leave to remain?


-Do you have any systems in place requiring a work permit holder to inform you if they are switching to another immigration status (eg Tier 1)?


-What would you do if you suspect that a migrant employee is breaching the conditions of his or her leave?

Do you check all your staff or only non-UK nationals?

From the 29th February you are expected to conduct a yearly check upon any employees with limited leave to remain employed after this date in order to establish an excuse from a Civil Penalty. Do you have a procedure in place which will enable you to do this?

Additional information in relation to Area 1 or continuations from above question

Area 2 - Maintaining Migrant Contact Details

To ensure that the prospective sponsor is able to comply with the of the Immigration Rules to hold contact details for their sponsored migrants and to update them as necessary 

Do you keep contact details for your staff and if so, which details are kept?

How are these contact details recorded?

How do you ensure that these contact details are up to date? For example, regular audit, self-service system, a formal procedure for employees to inform HR of changes?

Where are these contact details kept (for companies with more than one location)?

Additional information in relation to Area 2 or continuations for the above questions

Area 3 - Record Keeping

To ensure that the prospective sponsor is able to comply with the requirement of the Immigration Rules to provide documentation relating to sponsored migrants e.g Resident Labour Market Test upon request.
Do you retain information relating to the recruitment of employees, especially migrants?

What documents are kept and for how long e.g qualifications, references, copies of work permit applications etc?

Do you retain personnel files for your staff and if so, what information is recorded e.g start dates, attendance, job roles held etc?

Where is this information held (if the organisation has more than one branch) and how would/could we get access to this information e.g advertisements if we needed to?

Additional information in relation to Area 3 or continuations from the above questions:

Do you have systems in place to ensure that you are alerted to all changes in a sponsored migrant’s:

- Salary

- Location 

- Duties and Responsibilities 

and to be able to report these to the UKBA (other than annual salary rises or minor changes to duties and responsibilities)? 

Area 4 - Migrant Tracking and Monitoring

To ensure that the sponsor is able to comply with the requirement of the Immigration Rules to monitor their migrants and report to the UK BA within any time period specified the circumstances listed in paragraph 88d
How is the attendance of staff monitored and recorded on a daily basis?

Who will be responsible for updating the SMS e.g users at each location, central HR function etc?

How will such circumstances be communicated to an SMS User to ensure that it is updated within 10 working days? Is there a formal procedure for this and how will/have the relevant people been informed of what they should report, who to and when?

How are migrants monitored on a day to day basis especially if they are working remotely at a client’s site or from home? How often is this contact?

Additional information in relation to Area 4 or continuations from the above questions:

Area 5 – Recruitment Practices and Professional Accreditations

To ensure that the prospective sponsor is able to comply with the requirements of the Immigration Rules to ensure that the sponsored migrant intends and is able to do the job in question and to ensure that they are legally entitled to do the job in question and has the appropriate professional accreditation or registration, where this is legally required

What is your general procedure for recruiting staff e.g where do you advertise, do you head hunt, do you conduct recruitment exercises or fill individual vacancies, how do you shortlist applicants, do you conduct interviews or assessment centres?

How do you assess a candidate’s suitability for the position especially if they are from overseas e.g how do you verify overseas qualifications, references etc

Do you have any positions where require professional accreditations or registrations and if so, what types of positions?

How are professional accreditations verified and at what stage?

Do you retain copies of qualifications, references, and especially professional accreditations? If these accreditations have expiry dates how do you ensure that your records are updated appropriately?

Additional information in relation to Area 5 or continuations from the above questions:


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## niomi (Oct 9, 2012)

@lovestravel thank you for the thorough reply. There are actually two things about my situation that make it a bit different:

1) as a graduate from a uk university companies will NOT need to prove no other eu/uk citizen can do my job
2) even companies that are registered to sponsor have been rejecting me after hearing my visa status - saying they are not prepared to sponsor for that specific position (ie more entry level roles)

It seems like these aspects, combined with the previous court case, should make it less acceptable that companies are so keen on screening tier 4 students out beforehand..


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## lovestravel (Apr 9, 2012)

In looking at all this information I personally would not want to hire someone who was not already legal to work. Sponsorship seems like such a pain and expensive.

If you want to switch from student to tier 2 I don't think it is possibly anymore anyway. You would have to return to your home country and apply from there anyway.

Unless you have a skill set that no one else can fill I don't see how you would be able to find a job in the UK anyway because of the strict rules. Maybe you should start by searching for companies that already have sponsorship in place and regularly hire expats?


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## lovestravel (Apr 9, 2012)

niomi said:


> @lovestravel thank you for the thorough reply. There are actually two things about my situation that make it a bit different:
> 
> 1) as a graduate from a uk university companies will NOT need to prove no other eu/uk citizen can do my job
> 2) even companies that are registered to sponsor have been rejecting me after hearing my visa status - saying they are not prepared to sponsor for that specific position (ie more entry level roles)
> ...


I am not sure but I don't think the UKBA allows students to switch from student to worker visas anymore. Joppa can verify that. You would have to return to your home country to apply for a fresh visa.

On entry level jobs I just don't see a company going to the expense to sponsor someone. Even with a sponsor license in place it costs a lot of money to issue a license letter for each employee. Plus they have to meet the minimum salary requirements of around 18,000 a year I think?

Again, unless you are a highly skilled worker working for a company over 12 months and a salary over 150,000 a year the company has to prove quite a bit. For entry level I would think that it would be impossible for them to prove the position was unfillable with a local resident.


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## Joppa (Sep 7, 2009)

lovestravel said:


> In looking at all this information I personally would not want to hire someone who was not already legal to work. Sponsorship seems like such a pain and expensive.
> 
> If you want to switch from student to tier 2 I don't think it is possibly anymore anyway. You would have to return to your home country and apply from there anyway.
> 
> Unless you have a skill set that no one else can fill I don't see how you would be able to find a job in the UK anyway because of the strict rules. Maybe you should start by searching for companies that already have sponsorship in place and regularly hire expats?


niomi is right in what she says. When Tier 1 Post-study Work (PSW) scheme was abolished to new entrants from last April, the government, due mainly from pressures by universties who feared it will hit them with recruitment of overseas students, decided to leave open a possibility for recent UK graduates to enter the labour market with Tier 2 General, with a major concession of not requiring to pass resident labour market test (RLMT). The job offer must be for a graduate-level job with a minimum salary requirement, and provided the applicant meets other conditions like finance and housing, a visa can be issued without having to advertise and offer the job first to those with the right to work. So this is a good scheme for well-qualified graduates and for employers who are keen to hire them. The trouble with PSW was most takers just went for low-skill, entry-level jobs, like driving and waiting/waitressing, thus taking jobs from other young people in the very competitive sector of the job market. 

You are right that sponsoring is an onerous responsibility for the employers and most just don't want to bother with it, except where there is a genuine shortage of skilled labour. You can't force them to offer sponsorship, and they should have the right to decide for themselves. They aren't breaking any law by not offering interviews to recent overseas graduates of UK universities.


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## niomi (Oct 9, 2012)

Joppa said:


> You are right that sponsoring is an onerous responsibility for the employers and most just don't want to bother with it, except where there is a genuine shortage of skilled labour. You can't force them to offer sponsorship, and they should have the right to decide for themselves. They aren't breaking any law by not offering interviews to recent overseas graduates of UK universities.


Joppa, thank you for the reply, your response is really helpful. 

According to that court case I pointed out (please google it - it is searchable via 'osborne clarke discrimination'), it was decided that it is 'indirect discrimination' to screen out graduates based on their visa status prior to the interview/later stages of the hiring process. I'm just trying to figure out how to tactfully let recruiters and companies know about this. My immigration advisor at my university even suggested I could go to court with this sort of thing..... :confused2:


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## Joppa (Sep 7, 2009)

niomi said:


> Joppa, thank you for the reply, your response is really helpful.
> 
> According to that court case I pointed out (please google it - it is searchable via 'osborne clarke discrimination'), it was decided that it is 'indirect discrimination' to screen out graduates based on their visa status prior to the interview/later stages of the hiring process. I'm just trying to figure out how to tactfully let recruiters and companies know about this. My immigration advisor at my university even suggested I could go to court with this sort of thing..... :confused2:


One thing to remember is nobody is obliged to give you a job. If a court forces them to offer you an interview, they can and probably will reject you, officially for reasons other than your visa status, and frankly nobody will want to hire someone who will go to court to assert their rights. You are in a weak position in any case.

Only go to court if you have a legitimate claim against a company, such as for unfair dismissal, and if you are in a position to gain a concrete victory, like getting your job back or a handsome compensation.


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## lovestravel (Apr 9, 2012)

I agree with Joppa on this. I am not vested on uk employment rules at all but just from our experience it seems that it is the legal responsibility of every single company to check to see if a potential worker is legal to work if they are in fact not interested in sponsoring someone (either through economics reasons or the hassle of doing so).

If a company is not licensed to sponsor it takes 4-6 months to get approval on that (plus the fees) and who knows how long for someone to get their visa on top of that because you can't apply for your visa until they have their sponsorship license in place and then issued a sponsorship letter in your name. It could possibly take 8 months or more just to hire someone in this position. If they are already licensed it still takes time and expense to add another employee to the license. Why would a company go through all this hassle for a new untried employee in an entry level position?

As far as interviewing is concerned, if I was the person responsible for interviewing the applicants (whether in house or recruiter) why would I want to waste my time interviewing candidates that the company would be unwilling to ultimately hire? It sounds like for every position available there are thousands of qualified local applicants even for entry level jobs.

Again, I have no idea on this but if a company is not legal obligated to hire workers they would have to sponsor why would they be legally obligated to interview folks that require sponsorship? If you can't force a company to hire you why force them to interview you? What if the company doesn't qualify for sponsorship or the pay is not high enough to sponsor a foreign worker? 

If the uk is like the us, then you can sue anybody, anywhere, anytime, for anything even if you have no hope to win. If you do win the case will it get you want you ultimately want which is a job? Probably not in this case. Do you want to go to the hassle and expense to try to make it happen? That is really up to you.


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## niomi (Oct 9, 2012)

lovestravel said:


> If you do win the case will it get you want you ultimately want which is a job? Probably not in this case. Do you want to go to the hassle and expense to try to make it happen? That is really up to you.


You're right, which is why I'm looking for ways to use this information to my advantage in order to obtain a job.

In fact, Osborne Clarke actually lost the appeal trial. They compared visa discrimination to pregnancy discrimination, i.e., you don't have to tell employers this when looking for a job - the job offer itself should be independent of your working permit status.


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## Joppa (Sep 7, 2009)

niomi said:


> In fact, Osborne Clarke actually lost the appeal trial. They compared visa discrimination to pregnancy discrimination, i.e., you don't have to tell employers this when looking for a job - the job offer itself should be independent of your working permit status.


Not surprised. Only British and EU nationals - and those who are settled here - are to be treated equally for employment. For others, potential employers should be allowed to decide whether to take the application further by shortlisting and interviewing based on visa status. For those who require visa sponsorship - even without resident labour market test, such as recent UK graduates and those with shortage occupation, it should be the employer's choice whether to procceed further or not, as sponsorship entails extra work, monitoring, record keeping and reporting which they may not be prepared to accept.


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## niomi (Oct 9, 2012)

Joppa said:


> Only British and EU nationals - and those who are settled here - are to be treated equally for employment. For others, potential employers should be allowed to decide whether to take the application further by shortlisting and interviewing based on visa status. For those who require visa sponsorship - even without resident labour market test, such as recent UK graduates and those with shortage occupation, it should be the employer's choice whether to procceed further or not, as sponsorship entails extra work, monitoring, record keeping and reporting which they may not be prepared to accept.


Thank you for your responses, they are helpful!


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## lovestravel (Apr 9, 2012)

Joppa said:


> Not surprised. Only British and EU nationals - and those who are settled here - are to be treated equally for employment. For others, potential employers should be allowed to decide whether to take the application further by shortlisting and interviewing based on visa status. For those who require visa sponsorship - even without resident labour market test, such as recent UK graduates and those with shortage occupation, it should be the employer's choice whether to procceed further or not, as sponsorship entails extra work, monitoring, record keeping and reporting which they may not be prepared to accept.


That's what I would think. What is the basis for discrimination? Discriminating against those who do not have the ability to work legally in the country and start the position right away? To me those would be valid reasons to eliminate someone from the applicant pool. Is it not the employers responsibility to make sure workers are legal in the first place? If they don't then aren't they violating the laws on illegal worker migration? It makes no sense why you would want to force someone to interview you if they are unable or unwilling to sponsor a worker visa. It seems like even if you got an initial interview you would be eliminated for the position right after that. Why waste everyone's time? It seems like you would be more successful in obtaining a job if you were up front and found a position in which the employer was willing and able to sponsor.


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## niomi (Oct 9, 2012)

Joppa said:


> Not surprised. Only British and EU nationals - and those who are settled here - are to be treated equally for employment. For others, potential employers should be allowed to decide whether to take the application further by shortlisting and interviewing based on visa status. For those who require visa sponsorship - even without resident labour market test, such as recent UK graduates and those with shortage occupation, it should be the employer's choice whether to procceed further or not, as sponsorship entails extra work, monitoring, record keeping and reporting which they may not be prepared to accept.


I certainly understand why it may be more work and why companies hold this viewpoint. The only thing however is the court case which I've been pointing to which came to the conclusion that despite companies thinking they should be allowed to limit equal consideration amongst non-EU nationals, they cannot do this legally. 

There is a precedent that shows this-- they can be found in the links to the court cases. legalweek. com/legal-week/news/1145322/osborne-clarke-hit-discrimination-ruling

And the appeal, which failed, here: bailii. org/uk/cases/UKEAT/2009/0305_08_0902.html

Sorry for oddly formatted URLs.

Really curious on your thoughts in regards to this... thank you!


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## lovestravel (Apr 9, 2012)

niomi said:


> I certainly understand why it may be more work and why companies hold this viewpoint. The only thing however is the court case which I've been pointing to which came to the conclusion that despite companies thinking they should be allowed to limit equal consideration amongst non-EU nationals, they cannot do this legally.
> 
> There is a precedent that shows this-- they can be found in the links to the court cases. legalweek. com/legal-week/news/1145322/osborne-clarke-hit-discrimination-ruling
> 
> ...


When I read the information the attorney sent us about preventing illegal workers it seems to me that it is illegal for employers NOT to check the employment status of workers which contradicts what you are saying.

It also seems that there are a lot or requirements for a company to sponsor someone. What if the company is unable to qualify for a sponsorship or afford to do so? Is it illegal then? What if the job they are hiring for does not pay enough to sponsor? Is it still illegal?

It appears that you can't force them to offer a sponsorship, why force them to interview? Seems like you would just be wasting everyone's time including your own. Why do you want to run around holding interviews for jobs that you will not be hired for?


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## mehemlynn (Nov 16, 2011)

niomi said:


> I certainly understand why it may be more work and why companies hold this viewpoint. The only thing however is the court case which I've been pointing to which came to the conclusion that despite companies thinking they should be allowed to limit equal consideration amongst non-EU nationals, they cannot do this legally.
> 
> There is a precedent that shows this-- they can be found in the links to the court cases. legalweek. com/legal-week/news/1145322/osborne-clarke-hit-discrimination-ruling
> 
> ...


I haven't read the court case, but there is mild discrimination of all sorts all around the world. While you might be able to use a court decision to force an interview, you won't make the companies want to employ you. 

If there are plenty of people who can do the same work without them having to track immigration status, why would they want to sponsor someone else, even if you have the paperwork saying you can legally work there.

I would imagine that each prospective employer can tell you why you were dropped out of the pool, and I bet each one wouldn't list your status as the main consideration, but one of several considerations. Every person in the pool of applicants has strengths and weaknesses, and having to be sponsored is a definite weakness. While they legal can't make immigration the reason for the decision, I think you will find they each have a perfectly valid reason, and you would have to prove the reason you didn't get the interview; which is difficult in a good economy, but I would imagine impossible now.

For years I was a 30-something year old, married woman with no kids; I didn't often get calls, when the person who ended up hired had less experience than me. As soon as I had my daughter my employment prospects have picked back up. Was it discrimination, because I might at some point get pregnant - possibly; but each employer had a very possible reason (too much experience, different types of markets, etc) why they didn't call.

Court cases to get a job take too long to be helpful and if you end up getting hired, they company isn't likely to promote someone who caused such problems. I still think the most over the top example is when a man sued (in the US) to get a waiter job at Hooters (someone was really just missing the whole point), he was awarded the job, but if I remember correctly didn't keep it more than a week.

You would be better off looking for companies that don't mind hiring immigrants, and do so regularly than trying to force the issue. 

M


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