Legal Article - Employment Law

Home Office Border and Immigration Agency Advice (BIA) 2005

The BIAís good practice recommendations for preventing racial discrimination occurring when applying the Immigration, Asylum and Nationality Act are as follows:

As a matter of good employment practice, you should have clear written procedures for the recruitment and selection of all staff, based on equal and fair treatment of all applicants. Copies of these procedures should be made available to all relevant staff.

All job selections should be on the basis of suitability for the post. You should ensure that no prospective job applicants are discouraged or excluded, either directly or indirectly, because of their personal appearance or accent. You should not make assumptions about a personís right to work or immigration status on the basis of their colour, race, nationality, or ethnic or national origins, or the length of time they have been resident in the UK.

The best way to ensure that you do not discriminate is to treat all applicants in the same way at each stage of the recruitment process. For example, if you provide information to prospective applicants, or if you supply an application form, you could also include a reminder that the successful applicant or short listed applicants, will be required to produce an original document or documents included in List A or List B.

You may ask applicants to provide the specified document(s) to obtain a statutory excuse at any stage before they start work. Depending on your recruitment processes, you may find it most convenient to request documents from all those called to a first interview or just from those called to a second interview, or only from persons short-listed to fill the vacancy. Original documents should be checked before employment commences. If you ask for documents from applicant, you should make sure you ask for documents from all applicants being considered at that stage.

Job applicants should not be treated less favourably if they produce a document or documents from List B rather than List A. A person producing document(s) from List B will have a time limit on their legal ability to stay and work in the UK, but it is possible for certain catergories of entrant to obtain an extension to their entitlement to remain and work in this country.

Once a person who has limited leave to remain has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment, including the terms of employment provided, opportunities for training, promotion or transfer, benefits, facilities or services of by dismissing the worker or subjecting them to some other detriment, other than the repeat checks.

You should only ask questions about an applicantís or employeeís immigration status, where necessary, to determine whether their status imposes limitations on eh number of hours they are entitled to work each week, or on the length of time they are permitted to work within their overall period or type of leave given.  For example, those granted leave as students undertaking full-time undergraduate study in the UK should not work for more than 20 hours per week during term time, except where the placement is a necessary part of their studies and is undertaken with the educational institutionís express agreement.

If a person is not able to produce the appropriate listed document(s), you should not assume that he or she is living or working in the UK illegally. You should instead refer the person to the Border and Immigration Agency through the Immigration Enquiry Bureau on 0870 606 7766, or a Citizens Advice Bureau for advice. You should try to keep the job open for as long as possible, but you are not obliged to do so if you need to recruit someone urgently.

It is ultimately the decision of the employer whether or not to employ an individual.

The Home Office Immigration and Border Agency

Published: 24 Mar 2011


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