Has the Resident Labour Market Test truly been removed?

On 1 December 2020 the Skilled Worker route replaced the previous Tier 2 General visa.

Prior to this date employers were required to carry out a Resident Labour Market Test for all posts to be filled by a Tier 2 (General) migrant unless an exemption applied, such as for shortage occupations; certain research positions; where the job is post-study work for certain classes of switcher.

If none of the exemptions applied, employers had to place at least two job advertisements for at least 28 calendar days to ensure there were no suitable workers already living permanently in the UK.

Although, a formal Resident Labour Market Test  is no longer required, according to section SW 5.5 of the Statement of Changes to the Immigration Rules (page 223) published on 22 October 2020 “the decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do:

1. 1. Does not exist; or
   2. Is a sham; or
   3. Has been created mainly so the applicant can apply for entry clearance or permission to stay”.

This means the Home Office will assess whether the vacancy is genuine and will not award points for sponsorship where they believe this requirement has not been met.

To ensure the employer is not displacing a suitable settled worker they must be able to explain and where appropriate provide evidence of how they recruited the sponsored worker or temporary worker under the Tier 5 route.

Section B to Appendix D to the Immigration Rules mentions the evidence of recruitment activity that must be retained.

Where the role has not been advertised the employer must be able to explain how they identified the worker. These can include for example:

• • identifying the worker through a university milkround – in which case the employer should retain evidence of the milkround as described in Section A, paragraph (h) of Appendix D to the Immigration Rules,
  • the worker was already legally working for the employer on another immigration route, and they were suitable for the role through their previous performance,
  • the worker applied to the sponsor outside of a formal advertising campaign (made a ‘speculative’ application) and the employing organisation was satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.

Despite the removal of the Resident Labour Market Test, organisations applying for a sponsor licence are still advised to advertise the role, where this would have been required under the previous Immigration Rules. This is to demonstrate the genuine vacancy requirement has been met.

 An example of this would be where an organisation is planning to hire an overseas worker as a skilled chef, an occupation recently removed from the Shortage Occupation List.

 

Where there are genuine vacancy concerns the Home Office can decide to put a sponsor licence or overseas visa application on hold pending the outcome of a compliance visit.

The Skilled Worker Caseworker guidance also mentions, where the caseworker has reasonable grounds to believe that the applicant is complicit in being sponsored for a vacancy that is not genuine, they can be invited to attend an interview.

The rules regarding advertising the role are more flexible. There is no longer a specified minimum number of advertisements that must be placed, nor a prescribed method of advertising. Therefore, sponsors should find it quicker to recruit overseas workers.

Where the role has been advertised all of the following evidence must be retained:

• • Details of any advertisements placed including:
    • a screenshot, printout or photocopy of the advert, or a record of the text of the advert; and
    • information about where the job was advertised (for example, website address), and for how long.
  • A record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process
  • At least one other item of evidence or information which shows the process used to identify the most suitable candidate:
    • examples include:
      • a copy or summary of the interview notes for the successful candidate,
      • a list of common interview questions used for all candidates as part of your selection process,
      • brief notes on why the successful candidate was selected and why other candidates were rejected,
      • information about any scoring or grading process used to identify the successful candidate,
      • any other relevant information or evidence

It is not necessary to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates.

• • A detailed and specific job description outlining the duties and responsibilities of the post which must include the skills, qualifications and experience required for the post,
  • Copies of any relevant qualifications the worker holds to confirm skill level, such as degree certificate and/or documents that show the worker had the skills and experience to do the job. This could be references from a previous employer or other evidence of experience.

If stated in the job advert that a certain qualification is mandatory for the job, employers must retain evidence that the sponsored worker has that qualification.

Where more than one advertisement has been posted, it is recommended to retain evidence of all advertisements placed.

Appendix D to the Immigration Rules requires all documents relating to a sponsored worker or student to be kept throughout the duration of sponsorship and until whichever is the earlier of:

• • one year has passed from the date on which sponsorship ended; or
  • the date on which a compliance officer has examined and approved them, if this is less than one year after the sponsorship ended.

 

If you would like to apply for a sponsor licence and are unsure if the role you are recruiting for should be advertised or not, contact Migrate UK on  info@migrate-uk.com or 01235 841568.