A self-described "queer Tamil immigrant" elected as a Scottish Green MSP did not break immigration rules, despite not having the right to undertake full-time work in the UK.
Non-binary PhD student Q Mannivannan was elected as an MSP on the Edinburgh and Lothians East list last week, and was allowed to stand after the Scottish Government relaxed legislation to allow non-UK citizens to represent Britons.
After standing on a student visa, the MSP has appealed for donations to raise money for a graduate visa, granting him three years to live and work in the UK before applying for another visa.
Despite holding no indefinite leave to remain in the UK, the MSP is primed to pocket £77,711 a year.
The Scottish Tories called on the Home Secretary to investigate whether his appointment breached the terms of the visa, given student visa holders are banned from taking permanent jobs.
However, officials have dismissed the concerns because, under a loophole in the immigration rules, being an MSP is not classified as employment.
In light of changes introduced in October 2022, filling or standing for the post of elected office in local or devolved government is not considered a form of employment.
The legislation states: “Standing for or filling an elected post in local or devolved government is not considered to be employment for the purposes of the immigration rules, and conditions restricting employment do not affect the ability to undertake such activities."
The newly-elected candidate has been catapulted into the Edinburgh seat - despite not being a UK citizen | EDINBURGH GREEN PARTYThe recent amendment means Manivannan is not in breach of legislation, and is therefore allowed to fulfil the role until their student visa expires at the end of the year.
However, until they get a graduate visa, it remains unclear whether they will be able to continue in the post after that point.
The Edinburgh MSP arrived at St Andrew's University on a student visa in 2021, meaning they could only work up to 20 hours a week during term time.
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There is an opportunity to work in a full-time role outside of the academic calendar, although working as an MSP requires significantly more than 20 hours per week.
Manivannan has applied for the paperwork, which would allow them to work in the UK for up to three years - however being an MSP alone does not qualify one for the necessary Global Talent Visa.
This allows holders to work in the UK for five years, which the Home Office confirmed was reserved for “talented individuals” in science, technology, arts and culture.
A spokesman said it was not possible to determine a candidate’s eligibility before they had applied.
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Ross Greer, co-leader of the Scottish Greens, conceded Manivannan might not be able to serve a full term, and said: “You can’t guarantee this process, of course.”
The new rule change was initially introduced to address concerns EU migrants living in the UK with settled status were unfairly barred from standing for office due to conditions of their right to work.
The change did not affect who was eligible to stand as a candidate, only that being an office holder should be considered a form of employment.
Student visa holders were unaffected by the change, as they were barred from standing for office under separate laws governing elections.
Last year, the SNP changed the electoral rules in Scotland, allowing migrants such as Manivannan with limited leave to remain to stand.
The combination of the two changes created a loophole, allowing someone such as Manivannan to become an MSP.
Malcolm Offord, Reform UK’s Scottish leader, has pledged to scrap the new rule, describing the current situation as a “mess”.