Recruitment and immigration FAQs 

The following FAQs relate to the low risk approach to immigration status, which is our original guidance on this matter. Click here for more information on the various risk approaches.

I have been told that a recent case decided by the Employment Appeal Tribunal means that NHS Jobs are removing some filter and pre-application questions relating to immigration status -– is this correct? 

No.  NHS Employers constantly review NHS Jobs processes in order to assess risk, best practice and legal compliance.  Our original communications did state that we would be removing the filter and pre-application questions, but we have since taken feedback from users and have instead provided some alternative approaches and risk analyis.  For those organisations following the low risk approach, we recommend that organisations no longer use the pre-application and filter questions relating to immigration status.  These include:

• “Do you have the right under UK immigration rules to live and work in the UK and without restriction.
• Are you under a United Kingdom (UK), European Community (EC) or European Economic Area (EEA) National?  (Yes or No)
• Please select the category that relates to your current immigration status.  This status will be subject to checking before interview.  (Individual immigration categories)
• Country (UK, EEA or Non EEA).”

My organisation presently asks candidates about the right to work and about their immigration status prior to short listing.  We do this to reduce the time and cost burden associated with recruitment and if it is apparent that we have enough UK/EEA candidates, we do not short list the non-EEA candidates because we do not feel we can meet the Resident Labour Market Test (see below).  Does this practice pose any risks to our organisation?  

Yes.  If the question is asked as a means of filtering out non-EEA applicants or as a blanket policy to exclude non-EEA applicants from the recruitment and short listing process, then yes this recruitment practice increases the risk of an indirect discrimination claim.  It is also possible for a direct discrimination claim to be successful in these circumstances although the Osborne Clarke case did not consider direct discrimination. 

What are the risks to my organisation if I continue to exclude non-EEA candidates from shortlists based on their immigration status?

You will face the risk of a challenge by individual job applicants or complaints to the Equalities and Human Rights Commission (“EHRC”) that your recruitment practices are unlawful.  The imposition of a provision, criterion or practice (“PCP”), which applies to everyone but has a more disadvantageous impact on a particular group, will amount to indirect discrimination, unless your organisation can “objectively justify” the reasons behind the PCP (see below).  

Asking this question at an early stage and having a blanket policy which excludes individuals who require sponsorship will disadvantage non-EEA candidates on the grounds of their nationality or citizenship, which could also amount to direct race discrimination.  

My organisation has a good reason for imposing a PCP – we get a huge amount of applications for jobs (especially since the economic downturn) and weeding out non-EEA applicants at the beginning makes good commercial sense.  We know we will never meet the Resident Labour Market Test (“RLMT”) with so many UK/EEA applicants to choose from.  Surely that argument will satisfy the Courts? 

Not according to the Osborne Clarke case.  The EAT pointed out that applicants should be short listed on merit in accordance with the Code of Practice on Racial Equality and questions about immigration status should not be asked until the final stages of the selection process to make sure the appointment is based on merit alone.  The EAT did not like the employer’s cost argument or the argument about unfairly raising expectations of non-EEA candidates if they were shortlisted.   Consequently, in the light of this decision and the risk of discrimination claims non-EEA candidates should not be rejected on the basis of the Resident Labour Market Test until a later stage. 

What is the Resident Labour Market Test?  

The UK Border Agency website provides further information about the “RLMT”.   Following recent changes to UK immigration law, if you wish to recruit a migrant worker from outside the EEA who requires sponsorship, you can only do this if the job is on the shortage occupations list or if you complete a RLMT and can show the UKBA that “no suitably qualified settled or resident worker” could be found to take the job.     

How do I complete a RLMT?

Please see our immigration pages for advice on completing a resident labour market test.  

Surely the impact of the RLMT means that I can rely on the new PBS and tier specific requirements as a reason for excluding non-EEA applicants early on in the process?

It is clear that there are some tensions between how employment law and discrimination issues fit in with the UK immigration system.  However, the Osborne Clarke case makes it clear that excluding candidates based on an assumption about immigration status or a right to work, is discriminatory.  Our advice is therefore that you cannot rely on the RLMT to justify the exclusion of applicants at an early stage and the safest practice is to select on merit and only turn to the question of rejecting non-EEA candidates based on your inability to meet the RLMT at a much later stage (i.e. at the point of selecting candidates just prior to making job offers).  This may not seem sensible but given the effect of the case, the EEA and the code, to do otherwise presents a risk of discrimination claims.

What if a resident EEA worker applies for the job and does not have the necessary skills, qualifications or experience for the job, can I refuse to employ them and employ a non-EEA applicant instead?

Only if you have specifically requested these qualifications, experience or skills in the job advertisement and person specification and if the non-EEA candidate fulfils the other tier 2 specific conditions under the points based immigration system.  You may need to obtain specific immigration advice on whether non-EEA candidates are likely to get immigration clearance and we suggest the Border Agency employer helpline is used in these circumstances.  

My recruiting manager says that because of the resident labour market test (RLMT) we cannot employ non-EEA applicants if we have sufficiently skilled, qualified and experienced settled EEA applicants to choose from, so there is little point in allowing non-EEA candidates to be short listed and we should exclude those applications early on.  How does that sound?

As above, there is a risk that this will be deemed to be unlawful indirect discrimination. 

Surely we can ask about a candidate’s right to work in the UK or their immigration status at some stage in the recruitment process?

Yes.  The Code of Practice on Racial Equality suggests that “candidates might be asked for the relevant documents when they are invited to an interview”.  The documents verifying eligibility to work should be requested for all candidates for the purpose of an employer checking that prospective employees have the right to work before they commence employment.   

Organisations could ask questions about verifying the eligibility to work and hold this information separately by HR, similar to the equal opportunities information already requested.  Candidates could be asked to separately indicate their eligibility status and should be notified how this information will be held (i.e. that this  information will only be retrieved and accessed by the HR/recruitment team only following the candidate’s interview and initial selection of successful candidates who are deemed to be appointable). 

We advise that the information about right to work, Tier 2 sponsorship and immigration status becomes a legitimate question at this much later stage in the process for employers who wish to satisfy the Asylum and Nationality Act 2006 requirements, i.e. that prospective employees have the right to work as they are about to commence employment.  It should not influence the question of whether such applicants are accepted, shortlisted or invited for interview.

The post which I am about to advertise will never attract Tier 2 sponsorship as the post does not satisfy the qualifications or salary requirement to qualify for Tier 2 sponsorship under the Points Based System.  Can I include a statement in my advert which makes it clear that as the post will not qualify for sponsorship non-EEA candidates will not be considered?

Potentially yes but this is still indirect discrimination and excluding applicants based on sponsorship criteria is not the safest practice and still carries an element of risk that will require objective justification.  Employers making such statements in adverts will need to be able to justify this assertion with evidence that the qualifications and salary for the post would not meet the basic requirements of the points based system. 

You might also consider making clear in advertisements that overseas candidates wishing to apply who would require sponsorship can self-assess the likelihood of obtaining a Certificate of Sponsorship for the post on the UKBA website. 

How can we manage the expectations of candidates in the recruitment process?  It seems unfair that non-EEA candidates could invest their time and incur costs in attending interviews when in reality they cannot be appointed to the post as we know that if we have suitably qualified EEA candidates apply for the posts, we will not meet the RLMT and cannot appoint non-EEA candidates? 

The EAT rejected the employer’s cost and ‘raising candidates expectations’ arguments in the Osborne Clarke case.  In essence they said that the employer should not have assumed that the candidates would not get a work permit without having any dialogue with the BIA.  The inference here is that the employer did not necessarily have to apply for a work permit but rather it could have consulted them without even incurring the £190 cost of a work permit application. 

There are good reasons for managing candidates’ expectations and potential outcomes of the recruitment process.  There is nothing to prevent employers from notifying all short listed candidates in the invitation to interview letter, about the numbers of individuals short listed for the post.  The letter inviting candidates to interview can include a statement reminding candidates about the RLMT and the fact that this may mean non-EEA candidates will not be appointed if the organisation has applications from suitably qualified, experienced and available settled EEA workers. 

Similarly, if employers wish to clarify the implementation of immigration policy to meet their duties as a licensed sponsor, they can approach the UKBA for information and guidance. It is advisable to keep a record of the conversation and outcome.

Can I include a statement in our advert about recruiting non-EEA applicants and the impact of the Resident Labour Market Test?

Yes.  We recommend the following statement is used to ensure that applicants and recruiting managers are aware that UK legislation will make it difficult for non-EEA applicants to secure NHS employment in positions which are not on the shortage occupations list and where there are suitably qualified, skilled and experienced UK and EEA candidates who have applied for the post. 

“Applications from job seekers who require Tier 2 sponsorship to work in the UK are welcome and will be considered alongside all other applications.  However, non-EEA candidates may not be appointed to a post if a suitably qualified, experienced and skilled EU/EEA candidate is available to take up the post as the employing body is unlikely, in these circumstances, to satisfy the Resident Labour Market Test . The UK Border Agency requires employers to complete this test to show that no suitably qualified EEA or EU worker can fill the post.  For further information please visit  UK Border Agency website.” 

Can we set up a reserve list for non-EEA applicants whereby we shortlist only EEA/UK candidates at the beginning and only then look at non-EEA candidates after if we have been unable to appoint a resident worker to the post?

We advise against this as it will still mean asking about candidates eligibility to work early on which is potentially indirect/direct discrimination.   Questions about immigration status should not be asked until the final stages of the selection process to make sure the appointment is based on merit alone.

I have heard some recruiting managers say that in order to get around the recruitment burden of short listing non-EEA workers, they are not going to apply for sponsorship licences.  This seems a good way to deal with the problem.   

This is not a recommended, advisable or risk free practice for NHS organisations that are also deemed to be “public authorities” and are subject to the general duty to promote equality of opportunity.  Failure to apply for a sponsorship licence for this purpose could be seen as breaching this duty.  In addition, if you are challenged by an applicant who says that you have rejected them because you do not have a sponsorship licence, there is still an argument that your “practice” of not having a sponsorship licence has an adverse discriminatory impact on non-EEA citizens and is therefore indirectly discriminatory. 

Furthermore, if you are a sponsoring body, you are able to rely on the need to meet the Resident Labour Market Test as a reason for your organisation not being able to employ non-EEA candidates.  Organisations that do not have a sponsorship licence will not be able to rely on this as a potential defence to a challenge of indirect race discrimination and may be more at risk than sponsoring bodies.