Do I point out this wording on a Home Office document?

[Horizons83]

I am an immigration lawyer, and in doing some work yesterday I came across the following statement (relating to the grant of licences for work permits):

*The Home Office will not license organisations whose actions and behaviour are non-conducive to the public good. These include but are not limited to:

• rejecting the rights of, or discriminating against, other groups or individuals on
the basis of their gender, gender identity, sexual orientation, marital status, race, religious belief (including lack of belief), or any other protected characteristic under the Equality Act 2010.*

To be fair, this wording has been there for some time, and I hadn't paid attention to it until now. But I now see the issues, when you actually look at the wording of the Equality Act 2020:

Equality Act says 'sex' - this says 'gender'
Equality Act says 'gender reassignment' - this says 'gender identity'

This has really annoyed me. There's a massive difference between gender identity and the legal definition of gender reassignment in the Act, which is 'A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.'

The question I have is: should I point this out to the Home Office? Is it worth doing so? They could argue that their list is nothing to do with the Equality Act anyway (although weirdly they have listed word for word the protected characteristics apart from the ones mentioned above, and age, which is probably due to the fact that there are some age based differences in the visa).

Or am I just being too sanctimonious about this and should let this one go? (I appreciate this board is likely to hold the same view as me, but my husband just rolls his eyes whenever I mention anything about gender issues so I can't ask his opinion, and I am not openly gender critical to any friends or family).

If I do point this out to them I will have to do so anonymously - if I put my name on it I am afraid of putting myself on a 'black list' at the Home Office which could adversely affect my clients.

Would any person be able to access the document on which this statement is written? If so, I don't mind emailing them to point out their error as I have nothing to lose by doing so.

This creeping invasion of Stonewall Law into everything does my head in

Yes it's a public document, for employers who wish to obtain work permits for employees:

www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers

First page of the document.

The question I have is: should I point this out to the Home Office? Is it worth doing so? They could argue that their list is nothing to do with the Equality Act anyway

That would be a bit hard as they've said any other protected characteristic under the Equality Act 2010.

Yes, you should point it out, politely and helpfully. Quite a few such errors have been noticed and corrected promptly when they've been pointed out. You may be able to find some threads with good wording you can borrow.

To provide context - if the Home Office felt that an employer was behaving in a way that meant they were discriminating against someone's gender identity they could refuse to allow them to obtain a licence to sponsor individuals for work permits (including EU citizens after Brexit who will use this system). Or revoke the licence if such discrimination was seen after the licence was issued.

The next paragraph from the guidance is:

The Home Office will refuse a sponsor licence application or take the appropriate compliance actions, if a prospective or existing sponsor is engaging or has ever engaged in such behaviour or actions. The compliance action taken will depend on the gravity of the behaviour and actions but could include compliance actions up to and including revocation.

Thanks for that.

Given that they state 'or any other protected characteristic under the Equality Act 2010' at the end of their incorrect list, I don't think they can honestly say that their list is nothing to do with it.

I will email them to point out the error, although probably not this week.

Thanks both - my point about the list is that they could say 'oh our list is what we have decided we have an issue with, PLUS anything in the Equality Act' (which coincidentally is almost the same list).

I will also draft an email to them (I think I've found another, technical error in the document in relation to salary levels for visas, so I can take the opportunity to do that too!).

I see your point, but then 'Gender' and 'Gender Identity' mean the same thing - to me, anyway - so I do think you are correct in that they have replaced sex and gender reassignment with gender and gender identity.

The impression I get from other similar examples is that it's not necessarily deliberate - more that there's been a lot of careless C&Ping from an inaccurate source.

Given it was the Home Office who produced that ridiculous document for security and door supervisors that basically told them not to worry if a person's ID did not match their appearance because 'trans', then yes, they do need pulling up on every instance of their inaccuracies and misrepresentation.

(Anyone familiar with licensing laws would know that an excuse like that would never stand up in court if an underage person was able to purchase alcohol because this policy was implemented. A publican could lose their license over this).

I agree Errol.

Seeing as this document was first published in January 2014, I wonder whether it has always said this, or whether it was changed in one of the updates and if so, when?

It occurs to me that in this specific instance, if you feel you need to include any justification for alerting them to their error, it's surely particularly important in docs relating to immigration, where good English can't be assumed, that the language is accurate and unambiguous so using 'gender' as a euphemism for 'sex' is obfuscatory.
But I'm not sure you need to mention that, not unless they don't do what most others have and say, oops, thanks, and correct it promptly.

@TheShoesa - it changed in 2019. Up until then there was no mention of revoking a licence for any reason other than a specific list of issues e.g. a conviction for having an illegal worker etc.

This addendum was added last year and to me adds a 'moral' aspect to the licence. I had focused on the terrorism aspect etc before, it's only thanks to this forum that my eyes have been opened to the difficulties with the reason of the wording.

This is a slight derail, but does anyone know what the EA means when it says:

...by changing physiological or other attributes of sex

What are "other attributes of sex" and how does one change them?

It does not appear to have been defined. One would need to search through Hansard to dicover if it was dicussed.

www.legislation.gov.uk/ukpga/2010/15/schedule/28

Yes absolutely let them know that their list is incorrect. I tell everyone, every time I spot it. This is important.

This is what Ann Sinnott’s case is about, isn’t it. That the EHRC has been giving incorrect information re the Equalities Act 2010. If you’re on Twitter you could flag it to her?

I'm doing this in a job application this week.

"The Home Office will not license organisations whose actions and behaviour are non-conducive to the public good. These include but are not limited to:"

This suggests they consider the public good goes beyond what the EHRC says.

Definitely contact the Home Office about this. The provision is in the guidance because of Equality Act, even if it doesn’t explicitly mention it.

Hi all... just wanted to update you on this one.

I am afraid I lost my bottle and did not contact the Home Office about this. However, on 1 December the new immigration system came in, and with it therefore new guidance documents. I just had a look at the new document and it now says the following:

'There is also a wider responsibility for sponsors to behave in a manner that is consistent with our fundamental values and is not detrimental to the wider public good. The Home Office will not license organisations whose actions and behaviour are not conducive to the public good. Such actions and behaviour include, but are not limited to:

fostering hatred or inter-community division
fomenting, justifying or glorifying terrorism
rejecting the rights of, or discriminating against, other groups or individuals on the basis of their sex, age, disability, gender
reassignment, sexual orientation, marital or civil partnership status, race, or religion or belief (including lack of belief)'

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936737/2020-11-18_Sponsor-guidance_Part-1-Apply-for-licence_11-20_v1.0.pdf

Page 16

IT HAS BEEN CHANGED! If anyone here did have more guts than me and contact the Home Office... thank you!