Your Guide to Satisfying the Resident Labour Market Test

In order to successfully fill a position via a Tier 2 (General) Visa, the sponsor must satisfy the Resident Labour Market Test (RLMT) to establish that there are no settled workers suitable for the position. Settled workers by this definition includes:

• UK nationals
• EEA nationals exercising EU Treaty Rights in the UK
• Citizens of British Overseas Territories (See Tier 2 and 5: guidance for sponsors for exclusions)
• Commonwealth citizens allowed to enter or remain in the UK under UK ancestry rules on the basis that a grandparent was born in the UK
• Those who have settled status within the meaning of the Immigration Act 1971

Satisfying the Resident Labour Market Test

In order to satisfy the Resident Labour Market Test, employers must advertise the position for a minimum period of 28 days before the Certificate of Sponsorship (CoS) is assigned. The advertisement must have full details of the position including:

• • Job Title
  • Job Description – including employment duties and responsibilities
  • Salary – need not state explicit figure but must include an indication of the salary or a range in line with the current market standards
  • Requirements – including qualifications and skills required for the position
  • Location(s) of Employment – the main area in which the position will be based
  • Closing date of application

Table 11B in Appendix A of the Immigration Rules provides specific advertising requirements depending on the type of job and the methods of advertising required to satisfy the Resident Labour Market Test. Advertisements must take place in at least 2 listed places specified in Table 11C of Appendix A of the Immigration Rules which include newspapers, websites (including prominent professional requirement organisations, JobCentre online or Find a Job Universal Jobmatch) or professional journals.

Importance of the RLMT

The Resident Labour Market Test was designed by the Home Office to ensure and provide settled workers with the opportunity to apply for employment positions. Why? The policy is that employment opportunities which arise in the UK should, in the first instance, be offered to suitable settled workers. As such, it is crucial that employers consider all applications received against requirements for a specified position.

If employers have two applicants equally qualified for the position, the settled worker must be offered the position. The RLMT goes as far as to ensure that where a non-settled worker is considered to be more suitable for the position, the settled worker who only meets the minimum suitability requirements for the position must be given preference. Where employers fail to comply with the RLMT, a Tier 2 (General) visa will be refused and there may be consequences for the employer’s sponsor licence.

The recent case of R (Khan) v Secretary of State for the Home Department [2018] EWHC 105 (Admin) in which the application for judicial review was dismissed by the High Court highlights the importance of correctly performing the RLMT. The decision that the employer’s application for a Tier 2 (General) sponsor licence was refused was upheld as the courts were not satisfied that the organisation “demonstrated a genuine attempt to recruit from the resident labour market”. There was insufficient evidence as to why the rejected applicants were unsuitable for the position of Business Development Manager thus calling into question the authenticity of the recruitment process conducted.

Exemptions to the RLMT

Employers must satisfy the Resident Labour Market Test unless the position or migrant meets one of the following exemptions:  

1. Shortage Occupation – the position appears on the Shortage Occupation Lists located in Table 1 and 2 of Appendix K of the the Immigration Rules under a specified Standard Occupational Classification (SOC) Code. The position must have a minimum of 30 working hours
2. Post Study Work – this covers situations where the applicant is switching to a Tier 2 (General) visa from a:
   1. Tier 1 (Graduate Entrepreneur) visa
   2. Tier 1 (Post Study Work) visa
   3. Tier 4 (General) student visa
   4. Tier 4 Doctorate Extension scheme visa

The applicant must be applying for leave to remain and have been granted entry  clearance or leave to enter under the visas stated above.

1. High Salary – the applicant’s gross annual salary is £159,600 or above
2. Continuous Employment – the applicant is continuing to work for the same employer in the same occupation as stated on the Certificate of Sponsorship Checking Service entry records
3. Research Position – the position is a supernumerary research position

Contact Our Business Immigration Barristers

It is important that appropriate evidence is retained to demonstrate that employers have satisfied the Resident Labour Market Test. For advice with satisfying the Resident Labour Market Test and general Sponsorship obligations enquiries, contact our immigration barristers and lawyers in London on 0203 617 9173 or complete our enquiry form below.