When employing migrants, do we still need to carry out the Resident Labour Market Test?
In December 2020, the new Immigration Rules came into force in the UK. One of the most welcome changes for many Sponsor Licence holders was removing the Resident Labour Market Test. However, initial relief at the withdrawal of such a time-consuming hurdle was short-lived as the Home Office-published Guidance continued to refer to the need to retain job adverts and associated details of the recruitment process carried out. This Guidance led to concern within the immigration industry that, in practical terms, there might still be a significant burden in place for the recruitment of migrants under the Skilled Worker visa route (as the replacement for the Tier 2 (General) visa).
Recently, though, there has been much-anticipated clarification from the Home Office about what is now - and, crucially, what is not - required in terms of migrant worker recruitment practices and record-keeping. The new Appendix D of the Home Office Guidance, the document dealing with record-keeping aspects of the Sponsor duties, contains the new requirements. Firstly, it stated that there is no requirement to carry out a Resident Labour Market Test or any specific recruitment process unless required to do so under the Immigration Rules.
Are there particular recruitment rules applying in the case of Skilled Workers and ICT visa applicants?
No, unless you have advertised the roles. If you have, then you must:
· retain details of the adverts placed (e.g. a screenshot), including information of where the advert was placed (e.g. which website) and how long the advert was live
· record the number of people who applied for the job and the number shortlisted for interview or other stages of the recruitment process
· maintain at least one other item of evidence or information which shows how you identified the most suitable candidate - e.g. copy of the interview notes for the successful candidate.
What records, if any, should be maintained if we do not advertise a particular role?
In that case, the Home Office say that you must be able to explain (and, if applicable, provide evidence of) how you decided that the worker recruited is suitable without an advertisement being placed.
The Home Office helpfully gives an example of a Sponsor potentially explaining the lack of an advert or other recruitment process where the worker in question was already working for the company on a different visa. For example, the Sponsor may have been pleased with the performance of someone employed on a Youth Mobility Visa and that their past performance has indicated that they are suitable. Alternatively, it could be that the worker approached the Sponsor or was recommended to the Sponsor, who determined through an interview that the worker was suitable for the role (keeping notes of the interview to evidence this).
Do we have to show that the migrant worker was the only suitable candidate for the position?
No, it is now a question of choice for the Sponsor to decide whether that worker is the most suitable candidate.
This clarification should reassure those Sponsors looking to take advantage of the removal of the old Resident Labour Market Test. Sponsors should always ensure that they are compliant with their Sponsor duties and follow the various record-keeping requirements.
For further assistance with compliance or any advice on immigration law and practice, please contact our team.