Weekly dilemma: Automatically rejecting non-EEA job candidates

Andrew Osborne, partner and head of business immigration, Hammonds, looks at how firms should treat non-EEA candidates.

We've noticed we are getting more and more applications from candidates who are non-European Economic Area (EEA) nationals and are likely to need permission to work. We have enough EEA and home-grown candidates, so we've told non-EEA applicants we can't accept their applications, via an automated response system. What are the risks of this policy, if any?

Following a recent Employment Appeal Tribunal decision in Osborne Clarke Services v Purohit, the policy of automatically excluding candidates on the basis of their right to work is likely to amount to indirect race discrimination.

The decision creates something of a dilemma for employers caught between illegal working legislation, the need to recruit from the resident labour market, and employment law. The safest approach is to consider all applicants based on their merit. Bearing in mind the proactive approach of the UK Border Agency on illegal working, employers should ensure that all staff who are about to be taken on have their right to work documents checked in accordance with List A or B of the Immigration, Asylum and Nationality Act 2006.

Candidates would have to be assessed by the employer as to whether they meet the requirements for sponsorship even if the employer does not have a licence. Unlike the work permit system where the final decision was taken by the UK Border Agency, the sponsor decides whether to sponsor a candidate.

The employer must assess the candidate against the sponsorship criteria, which will often include the resident labour market test, before going on to issue the sponsorship. If the candidate does not meet the criteria, they cannot be sponsored and can be rejected.

Sponsoring an employee who does not meet the criteria is effectively employing that individual illegally, and will be subject to a civil penalty and potential criminal sanctions. The UK Border Agency will carry out regular audits of sponsors to make sure sponsorship is used appropriately.

An employer can, therefore, either choose to reject candidates on the basis of merit - the safest approach - or on the basis that they do not meet the sponsorship criteria.