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HSMP and resident labour market test

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mmk385
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HSMP and resident labour market test

Post by mmk385 » Sat Aug 08, 2009 12:31 am

I recently applied for a job.The job advert stated
"Tier 2 Certificate of Sponsorship (formerly a Work Permit)
This job is unlikely to attract a Tier 2 certificate of sponsorship (formerly a work permit). Applications from candidates who require Tier 2 immigration status to work in the UK may not be considered if there are a sufficient number of other suitable candidates. To apply for a Tier 2 certificate of sponsorship, employers need to demonstrate that they are unable to recruit a resident worker before recruiting an individual from overseas. For further information please visit Home Office UK Border Office."
I am on an HSMP visa.Following an interview the job has been offered to someone requiring Tier 2 certificate of Sponsorship although I have been fedback that i was highly appointbale and suitably qualified for the post?
I wonder if any one has an idea where does HSMP Visa fit in terms of resident labour market test? Am i a resident worker? If yes how can i take this matter further?
Any help and guidance will be apreciated.

tech
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Post by tech » Sat Aug 08, 2009 9:28 am

You are not resident worker. You need to be british citizen or got Indefinite leave to remain (settled) to be treated as resident worker. HSMP gives you access to labor market without restrictions but it is still temporary visa with expiry date. Hope this helps

http://www.bia.homeoffice.gov.uk/employ ... t/#header3


It is quite surprising they have chosen someone who requires sponsorship under Tier 2 where you can be employed immediately. But it is their choice anyway.There is nothing you can do about this.

push
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Re: HSMP and resident labour market test

Post by push » Sat Aug 08, 2009 11:13 am

mmk385 wrote:I recently applied for a job.The job advert stated
"Tier 2 Certificate of Sponsorship (formerly a Work Permit)
This job is unlikely to attract a Tier 2 certificate of sponsorship (formerly a work permit). Applications from candidates who require Tier 2 immigration status to work in the UK may not be considered if there are a sufficient number of other suitable candidates. To apply for a Tier 2 certificate of sponsorship, employers need to demonstrate that they are unable to recruit a resident worker before recruiting an individual from overseas. For further information please visit Home Office UK Border Office."
I am on an HSMP visa.Following an interview the job has been offered to someone requiring Tier 2 certificate of Sponsorship although I have been fedback that i was highly appointbale and suitably qualified for the post?
I wonder if any one has an idea where does HSMP Visa fit in terms of resident labour market test? Am i a resident worker? If yes how can i take this matter further?
Any help and guidance will be apreciated.
They probably liked you very much but not so much as to offer the job. Qualifiers like "highly appointable and suitably qualified" do not mean anything unless the job is actually offered. Unfortunately as advised by the other member, there does not seem to be anything that you can do about it apart from working on "that" extra bit that cost you the opportunity. Good luck.
regards,
push
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monday
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Post by monday » Sat Aug 08, 2009 2:38 pm

HI
You are probably applying for a job with NHS. They are only saying that they are not ready to apply for work permit for any applicant. whoever is applying should have a valid visa that can make him/her work in the UK.
As an HSMP holder you are qualified to apply

Premkumar99
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hara baba nhs

Post by Premkumar99 » Sat Aug 08, 2009 3:53 pm

hara baba NHS jobu.........saithan

Premkumar99
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nhs

Post by Premkumar99 » Sat Aug 08, 2009 9:54 pm

nhs JOBS SUCKS MAN

mmk385
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HSMP and resident labour market test

Post by mmk385 » Sun Aug 09, 2009 12:11 am

Dear All
Thanks for your replies. I have put together factual details of my cses together with my understanding of the current immigration law. I would appreciate your comments
1-I am on HSMP visa. I recently applied for a consultant post in an NHS Trust. The job advert stated
"Tier 2 Certificate of Sponsorship (formerly a Work Permit)
This job is unlikely to attract a Tier 2 certificate of sponsorship (formerly a work permit). Applications from candidates who require Tier 2 immigration status to work in the UK may not be considered if there are a sufficient number of other suitable candidates. To apply for a Tier 2 certificate of sponsorship, employers need to demonstrate that they are unable to recruit a resident worker before recruiting an individual from overseas. For further information please visit Home Office UK Border Office."

The job has been offered to someone requiring certificate of sponsorship although the feedback provided after the interview stated that both of us were suitably qualified and eligible to take up the post. The interview panel felt that the other candidate performed better than me.
2-The definition of resident worker provided by UKBA does not include people on HSMP Visa. It primarily includes UK/EEA Nationals and people with indefinite leave to remain (ILR). And according to my understanding if a resident worker is suitably qualified and eligible to take up the post prospective employers can not appoint a migrant worker (who will require a Certificate of Sponsorship)even if the latter performs better at the interview (that is my understanding I wonder if others would agree with it). However it is quite vague about defining the status of HSMP people as compared to those who will need a certificate of sponsorship (work permit). I have extensively searched the UKBA website and failed to find any specific guidance about the status of HSMP.
3-NHS Employers (NHS Employers represents trusts in England on workforce issues and helps employers to ensure the NHS is a place where people want to work. NHS Employers is part of the NHS Confederation.) NHS Employers has published a briefing (issued in November 2008) to support employers with changes to the immigration system (http://www.nhsemployers.org/Aboutus/Pub ... system.pdf).
Under the heading Tier 1(general) and (post-study work): highly skilled workers the guideline says
“Applicants to advertised posts with either an HSMP or Tier 1 (general) visa should be treated in the same way as UK/EEA nationals providing they have no restrictions applied on their visa that prohibit them from undertaking that particular post.â€

vinny
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Re: HSMP and resident labour market test

Post by vinny » Sun Aug 09, 2009 12:42 am

mmk385 wrote:I would only like to take it further if there is a strong case to prove this point.
I would like to know how others feel about my case and do you see any benefit in taking any further action? Please feel free to challenge any of the assumptions I have made above.
Kind Regards
Unfortunately, I don't think that you can force employers to hire you if they are not inclined to do so. Why waste more time on this?
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

confusedhsmp
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Post by confusedhsmp » Sun Aug 09, 2009 1:15 am

my friend was in a similar position where he wanted to apply for job in Lloyds bankk, but their website would not consider applicant holding Tier1/hsmp let alone Tier 2. He reported the incident to Human Rights Commission's employment dept who advised him that it was totally illegal.

HRC they went through extensive research and found that Tier 1 migrants shouldnt be discriminated as they dont have any restrictions on employment and as such should be given same opportunity as citizens. this was even more in his favor as he was hsmp holder which stated that he made UK as his main home. and then to deny him a post was completely illegal .

If anyone finds himself in this position EVEN before the interviews take place, where the job is restricted to UK EU citizens and Tier1/HSMP are ignored, he can trigger an appeal at Employment Tribunal using relevant code and claim damages.

BUt the best we can get out of it is clarification on our rights!!!!


The shame here is he decided to drop the appeal even though a letter before action was sent to the bank.

The above advice is not legal. you should consult a solicitor and for any clarification post here so that i can respond.

tech
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Post by tech » Sun Aug 09, 2009 7:10 am

The critical difference is HSMP/Tier 1 visa has got expiry date which means temporay visa. If NHS want to sign a contract for 5 years with prospective employee, they can't do that with HSMP/Tier 1 applicants and they have do it until visa expiry where as ILR/EEA national candidate they can.

Again Tier 2 is under their control ,they will be able to get an extension if they managed to get initai tier 2 approval.

What you have posted is an guidance document not a legal requirement like Resident worker test.

Lot of HSMP holders in the forum posted their expreiences they faced similar issues due to shorter visa duration and were not able to apply/get jobs.

mmk385
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HSMP and resident labour market test

Post by mmk385 » Sun Aug 09, 2009 9:46 am

tech wrote:The critical difference is HSMP/Tier 1 visa has got expiry date which means temporay visa. If NHS want to sign a contract for 5 years with prospective employee, they can't do that with HSMP/Tier 1 applicants and they have do it until visa expiry where as ILR/EEA national candidate they can.

Again Tier 2 is under their control ,they will be able to get an extension if they managed to get initai tier 2 approval.

What you have posted is an guidance document not a legal requirement like Resident worker test.

Lot of HSMP holders in the forum posted their expreiences they faced similar issues due to shorter visa duration and were not able to apply/get jobs.
Dear Tech
Thanks. The NHS Employers briefing says
"This Briefing provides an outline of the changes and what NHS organisations MUST DO to meet the requirements of the new system"
My intrepretation-MUST DO means it is binding on them to follow it.
This briefing then says
"Applicants to advertised posts with either an HSMP or Tier1(general) visa should be treated in the SAME WAY as UK/EEA nationals providing they have NO RESTRCITIONS applied on their visa that prohibit them from undertaking that particular post"
My Interpretation-1-The restrictions here refer to New Tier 1 visa holders who have restrictions on taking up any postgraduate medical and dental training post. As far as HSMP holders are concerned i do not think there are any restrictions that prohibit us from undertaking a particular post.
2-If there was a UK/EEA national in place of me who was eligible to take the ppost they could not have been able to offer the post to someone requiring certificate of sponsorship even if the latter performed better than UK/National. So the only way they can treat an HSMP holder "in the same as a UK/EEA national" is if HSMP holders are given the same priviliges.
Coming to your first point that HSMP visa is time restricted and employers can only offer you post if your visa covered entire duration of your employment. That was the rule Secretary of Health came up with few years ago. British Association of Physicians of Indian Origin(BAPIO) took an action against this and if I am right the House of Lords BAPIO ruling addressed this issue decalring it as illegal. So my feeling is that if you are an HSMP holder and even if your visa runs out within seven days of taking the employment they can not refuse to offer you a post based solely on this.
Comments welcome.

push
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Post by push » Sun Aug 09, 2009 10:10 am

The NHS guidance is fine and clearly indicates that HSMP holders should be treated at par with those who do not require WP (Tier-2). The important questions is what your feedback said- (1) Both of you were eligible for the position; and/or (2) Both of you were suitable for the position.

There is a difference between eligibility and suitability. Based on the detailed note you have provided, my opinion is if you met the minimimum threshold for the position i.e. were found suitable for the job, you should have been offered the position irrespective of how the other guy fared.

@mmk385: duration of leave to remain can not be used to discriminate against prospective employees. HSMP/Tier-1 VISA leads to permanent settlement and there is a reasonable expectation that the employee will be able to get the extension when needed. The employer can not presuppose that they might not.
regards,
push
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tech
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Post by tech » Sun Aug 09, 2009 3:32 pm

I totally agree with your points .HSMP/Tier 1 should be treated equally with EEA Nationals/ILR holders. Your points are pretty soild on ethical and moral grounds and even NHS Guidance document wants to follow the same principle.

My point is there is no legal protection and the decision not to offer you the job cannot be considered as discriminatory in the eyes of law and there is nothing you can do about this.

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Post by ash786 » Sun Aug 09, 2009 4:33 pm

monday wrote:HI
You are probably applying for a job with NHS. They are only saying that they are not ready to apply for work permit for any applicant. whoever is applying should have a valid visa that can make him/her work in the UK.
As an HSMP holder you are qualified to apply
Yes only if he wants to aplied on the basis of HSMP but if he wants to switch then he will need to go through Tier 2 application process.

1971
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Post by 1971 » Mon Aug 10, 2009 4:38 am

Hi,

I have been told severally that I am a good candidate for several roles and that I am over-qualified for many roles. I believe I am only good if offered the role. I did not waste my useful time and resources trying to know what the employment laws says about job interview discrimination as I have not enough evidence to prove this at the employment tribunal. It is always difficult to provide evidences of discrimination on this type of issue. Yes, you can make a case if you feel cheated and have the resources to do so. But why waste your precious time and resources when there are better opportunities out there waiting for you to grab. Just my one cent...

Have a good day.

1971.
"Whoever has the Gold makes the rules. I wear the clothes, they don't wear me."

push
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Post by push » Mon Aug 10, 2009 8:43 pm

It is not correct to say that no protections are available against the alleged discrimination at interview stage. In our bank when we conduct interviews, we are specifically asked by the HR to fill and return an assessment form. We are told that these are very useful (and admissible as evidence in courts etc) should a rejected candidate moves court/tribunal against the process.

Secondly, the member is not raising concerns re discrimination but about employer not following the binding (?) recruitment guidelines.
Last edited by push on Mon Aug 10, 2009 10:51 pm, edited 1 time in total.
regards,
push
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1971
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Post by 1971 » Mon Aug 10, 2009 9:25 pm

Hi Push,

The guidelines the OP talking about is binding to NHS and not recognised by the employment tribunal. If the OP wants to make a legal case, he has to look for a universally accepted guideline that covers his case, which I believe does not exist. Even if it was not clearly stated in black and white that it is a case of discrimination, I believe that it is so. If you know the best guideline that can help the OP at the employment tribunal, then go ahead and advise him...

Push, please, read all your comments before my advice and also, try to appreciate other peoples opinion and perception.

Cheers.
1971.
"Whoever has the Gold makes the rules. I wear the clothes, they don't wear me."

push
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Post by push » Mon Aug 10, 2009 11:11 pm

1971 wrote:Hi Push,

The guidelines the OP talking about is binding to NHS and not recognised by the employment tribunal. If the OP wants to make a legal case, he has to look for a universally accepted guideline that covers his case, which I believe does not exist. Even if it was not clearly stated in black and white that it is a case of discrimination, I believe that it is so. If you know the best guideline that can help the OP at the employment tribunal, then go ahead and advise him...

Push, please, read all your comments before my advice and also, try to appreciate other peoples opinion and perception.

Cheers.
1971.
My post was a generalised response to some comments above. Secondly, are you saying that if NHS approves some binding guidelines and then chooses not to follow the same, one can not take them to the court if the guidlines are not universally accepted (as you suggest- though I would find it difficult to believe that NHS published a guidance which does not derive its power & is not enforceable under some rule/law)? The NHS guidancenote says "This Briefing provides an outline of the changes and what NHS organisations must do to meet the requirements of the new system." Thirdly, OP is not crying foul over any discrimination here infact he is saying that the employer did not (positively) discriminate in his favour, which they should have done under the prevailing guidelines.

Thanks for your kind advice re appreciating other ppl's opinion,though I am clueless as to what prompted you to say the same.
regards,
push
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mmk385
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HSMP and resident labour market test

Post by mmk385 » Tue Aug 11, 2009 9:14 am

Dear all
Thank you for your valuable comments
1-First of all i am assuming the interview process was fair.

2-The feedback i have received is from three out of 6 members of the panel all of which have given the same feedback that yes i am suitably qualified and eligible to take the post. The external member would be in a position to put it in writing. So proving my suitablitiy is not an issue here.

3-As push has rightly mentioned, my point is that HR failed to treat me in the same way as a UK/EEA national as directed by Dept. of Health (NHS Employers briefing 55). Just imagine if I was a UK/EEA national could the trust still choose to appoint someone requiring work permit just because the latter performed better at the interview. If not then the trust has failed to treat me in the same way as a UK/EEA national. In addition the job advert also says that candidates requiring work permit may not be considered if there are sufficient number of other candidates. What would constitute sufficient number for one post?

I wonder if someone can suggest a good solicitor i can take advice from. I fully agree with some of the members that it may not be an easy process and i should only take it forward if there is a strong case.
Kind Regards
mmk

confusedhsmp
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Post by confusedhsmp » Tue Aug 11, 2009 10:55 am


confusedhsmp
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Post by confusedhsmp » Tue Aug 11, 2009 4:55 pm

by the way, you can do it yourself if you go through Employment Tribunals website. its pretty straightforward..your case might be a presedence setting and as such no one would can give gaurantees. Same like HSMP JR. Fight for it if you can.

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