Employers who wanted to sponsor skilled migrant workers under the previous Tier 2 (General) work permit category had to establish that no appropriate settled worker could be found for the position before sponsoring a migrant worker unless they were excluded.
This was accomplished by conducting a Resident Labour Market Test (“RLMT”), an astringent advertising process designed to demonstrate that the employer attempted to recruit from the resident labour market but was unable to find a suitable settled worker despite these efforts.
The RLMT criterion has been eliminated with the establishment of the new Skilled Worker category.
Sponsor firms will no longer be required to conduct a prescribed recruitment exercise prior to sponsoring a migrant worker as of December 1, 2020. Instead, sponsors intending to hire individuals through the Skilled Worker category must show that the position being advertised is a real vacancy that fits the regulations’ wage and skill requirements.
The Home Office will consider the following factors when determining whether the function is genuine:
- Is there a role for this?
- Is it possible that the description is exaggerated?
- Is the role primarily intended to allow an overseas national to enter or remain in the UK?
- Are the requirements specified in the job advertisement unsuitable or incompatible with the company? Have they been crafted to exclude local employees?
What proof should a sponsor keep on file to show that a role is real?
According to the Sponsor Guidance (Appendix D) for retaining sponsorship records, the following documents should be kept on file to establish that the role is legitimate:
You must keep all of the following if you advertised the position:
- Details of any ads you’ve placed, including:
- a screenshot, printout, or photocopy of the ad, or a record of the ad’s text; and
- information on where and how long the position was advertised (for example, the website address). You are not required to put a certain quantity of ads or use a specific technique of advertising. (If you have posted more than one ad, we urge that you keep track of all of them.)
- The number of persons who applied for the job, as well as the number of people who were shortlisted for an interview or further stages of the recruitment process.
- At least one other piece of evidence or information that demonstrates the method you used to select the best candidate – examples include, but are not limited to:
- a copy or summary of the winning candidate’s interview notes;
- a collection of frequent interview questions used in your selection process for all candidates;
- brief explanations as to why the winning candidate was chosen and why the other contenders were not;
- details on any scoring or grading methods you used to choose the winning candidate
You are not required to keep rejected candidates’ application forms, CVs, interview notes, or any other personal information.
If the position was not advertised, you must be able to explain (and, if possible, offer evidence of) how you determined the worker was suitable if asked — examples include, but are not limited to:
- Using the university milk round, you were able to identify the employee.
- The person was already legally employed by you through another immigration method, and you had determined that they were qualified for the position based on their previous performance;
- You were satisfied (for example, by interviewing them and/or checking references or qualifications) that they had the requisite abilities and expertise to accomplish the job outside of a formal advertising effort (e.g., they made a “speculative” application).
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss that may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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- 29 September 2022
- 28 September 2022