Do we still need to advertise the role (the Resident Labour Market Test) before we sponsor a migrant worker?
From the What Visa? blog
Skilled Worker visas
12 Jun, 2021
The short answer is ‘No’ – there is no longer a specific requirement for employers to complete a Resident Labour Market Test before sponsoring a migrant worker under the Skilled Worker immigration route. Read on for a more nuanced view, including circumstances in which you might want to advertise the job first.
Although employers are not required to complete a formal Resident Labour Market Test, or even advertise the role at all, they do still need to ensure that they do not fall foul of the Home Office’s ‘Genuine Vacancy’ test. This test exists to give the Home Office some subjective decision-making powers to determine whether an employer is ‘gaming the system’...
Prior to December 2020, the Resident Labour Market Test was a core part of sponsoring a migrant worker under the Tier 2 skilled work immigration route. Employers had to advertise the job for 28 days in two different places and consider all applications from settled workers. Crucially, you could only proceed with the sponsorship application if you could demonstrate that none of the settled workers that applied were suitable for the role. This meant adverts had to be ultra-specific – as an employer, you would be on shaky ground if you rejected a settled worker because they did not have skills, experience or qualifications that weren’t listed on the job advert.
It also meant that employers had limited flexibility in hiring the best candidate – if a settled worker and a migrant worker both met all the basic requirements, but the migrant worker was subjectively better, it was against the rules to sponsor the migrant worker (there were limited exceptions to this rule for PhD level roles).
At the same time, the Home Office were constantly on the lookout for employers who ‘gamed’ the system by wording job adverts so as to require very specific skills, experience and qualifications that closely resembled the migrant worker’s CV. Think restaurant manager jobs that require the applicant to hold a degree in chemical engineering...
The Resident Labour Market Test requirement created three main challenges for employers:a) The delay – Even if the role had already been advertised, if the employer didn’t have exactly the right evidence (including screenshots taken on the day the advert was posted), another 28 days would be lost while the role was readvertised. When the business was desperate for the new joiner to start, this was incredibly frustrating.
b) The inflexibility – As mentioned above, employers were forced to show that the migrant worker was not just the best candidate, but that they were objectively the only candidate who met the requirements.
c) The admin – Employers had to retain extensive evidence of the recruitment process, including screenshots of the advertising and the CVs of all settled workers shortlisted for final interview. For employers with large recruitment teams, this requirement was often an administrative nightmare.
A fresh start
In December 2020, the Home Office introduced the Skilled Worker immigration route as a direct replacement for the Tier 2 scheme. To the relief of employers throughout the UK, the change included the abolition of the requirement to complete a Resident Labour Market Test before sponsoring a migrant worker. In addition, employers are now permitted to sponsor a migrant worker if they are the best candidate for the role, even if they are not the only candidate that meets the basic requirements.
Although employers are not required to complete a formal Resident Labour Market Test, or even advertise the role at all, they do still need to ensure that they do not fall foul of the Home Office’s ‘Genuine Vacancy’ test. This test exists to give the Home Office some subjective decision-making powers to determine whether an employer is ‘gaming the system’ – sponsoring a migrant worker not because they are the best candidate, but because of an improper motivation, e.g. where they are a friend or family member:
A role is not a ‘Genuine Vacancy’ if it:
- Does not exist;
- Is a sham (for example, the job exists but the applicant will not be doing it); or
- Has been created mainly so the applicant can apply for a visa.
The Home Office takes a risk-based approach to considering the Genuine Vacancy test – small, infrequent or first-time sponsors and those in industries the Home Office considers ‘risky’, e.g. hospitality, are more likely to attract scrutiny than large financial or professional services firms.
Where an employer has advertised the role, the Home Office requires the employer to retain certain evidence of the recruitment process – a list of the relevant documents can be found in the Home Office guidance here. Thankfully, this requirement is less stringent than it used to be. For example, employers no longer need to keep CVs of any unsuccessful applicants, but they do need to keep notes on why applicants were rejected. These requirements are roughly in line with the recruitment policies of most established companies in the UK, and so are unlikely to represent a big increase in admin. Still – it’s worth checking that your recruiters are keeping this evidence as standard and that they are retaining it for the length of the sponsorship +1 year.
Where the role has not been advertised at all, that’s fine, provided there’s a reasonable explanation. The Home Office guidance lists the following acceptable examples:
- You identified the worker through a university ‘milkround’
- The worker was already legally working for you on another immigration route and you established they were suitable for the role through their previous performance
- The worker applied to you outside of a formal advertising campaign (made a ‘speculative’ application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.
The best approach, and one the Home Office seems to encourage, is simply for employers to follow their normal recruitment process. If you advertise a role and find the best candidate is a migrant worker, keep evidence of the recruitment process. If you want to keep a migrant worker whose Tier 5 (Youth Mobility Scheme) visa is about to expire, you don’t need to advertise the role unless you really want to – just keep evidence that the migrant worker meets the requirements of the role. As long as your approach to recruitment is focussed on genuinely hiring the best person for the job, you shouldn’t have any problems at all.