Skilled Worker Visa - Evidence of Recruitment
The Immigration Rules underwent major changes at the end of 2020. The new highly-anticipated Skilled Worker route was introduced and at 9:00am on 1 December 2020 and immigration lawyers across the country were rejoicing the perceived abolition of the formulaic Resident Labour Market Test.
Whilst the new Appendix Skilled Worker does not strictly require a Resident Labour Market Test to have taken place, the Home Office’s guidance has retained some familiar terms and expected practices. This post explores what evidence of recruitment activities the Home Office expects for Skilled Worker applications.
What was the Resident Labour Market Test?
Prior to 1 December 2020, licensed sponsors wishing to hire migrants in the Tier 2 (General) category were required to conduct a specific recruitment exercise (unless certain exemptions applied) known as the Resident Labour Market Test (“RLMT”). Sponsors were required to conduct this exercise to show that no settled workers were available to carry out the role they wished to sponsor a foreign migrant to undertake.
Employers were required to advertise the role for a minimum period of 28 days. The advertisement had to include specific details of the vacancy, including the job title, the job description, an indication of salary, any required skills and qualifications, the location of the employment, and the closing date for applications.
The role also had to be advertised in at least two places as listed in the Sponsor Guidance issued by UK Visas and Immigration at the time. These included, but were not limited to, FindaJob, national newspapers, the internet, and recruitment agencies. It is important to note that the Home Office will accept two different advertisements using the same form of media, for example, advertising the job on two different websites.
The RLMT was a structured and prescribed process which often caused applications to fail where the proper processes were not strictly adhered to. Accordingly, the perceived abolition of this requirement was welcomed with open arms by practitioners and sponsors alike, particularly with the reality of increased numbers of Skilled Worker applications following the end of the transition period on 31 December 2020.
Has the RLMT really been abolished?
Sponsors are no longer required to undertake a formal recruitment exercise in order to sponsor a foreign migrant. However, they must satisfy the genuine vacancy requirement.
The Immigration Rules require the applicant to satisfy the Home Office that the vacancy for which they are being sponsored to undertake is a genuine vacancy and that they are genuinely able to undertake the role.
If there are reasonable grounds to believe that the job they are being sponsored to do does not exist, is a sham or has been created mainly so that they can apply for a UK Skilled Worker Visa then their application will be refused.
The Home Office will also want to be satisfied that they have not entered into an arrangement whereby they will fill a temporary or permanent position, or undertake contract work which involves undertaking an ongoing routine role or providing an ongoing routine service to a third party who is not their sponsor.
Therefore, a failure to adequately evidence how this requirement is met could have disastrous implications for the applicant and the licensed sponsor.
Demonstrating that the genuine vacancy requirement is met
Practically speaking, the Home Office will expect to see how the sponsor came to identify the migrant worker it is seeking to sponsor. This may have been as a result of a formal recruitment exercise, or this may be because the migrant is already working for the sponsor with permission to do so under a different immigration category. Applications in the Skilled Worker category will be expected to detail how the migrant was identified, regardless of the method.
Where recruitment exercise has taken place
The Home Office (Appendix D) guidance states that where the role was advertised, sponsors must retain screenshots or copies of the advert, including the text of the advert, and information about where the job was advertised and how long for.
The guidance does differ slightly from the previously restrictive RLMT, in that it confirms that “there is no specified minimum number of adverts you must place, or prescribed method of advertising.” Previously at least two separate adverts were required, and the role must have been advertised for a period of at least 28 days.
Sponsors will also be expected to retain details of the number of applicants, shortlisted candidates, and any other stages of the recruitment process. Interview notes must also be retained, as well copies of the questions asked, and any details about the decision making process.
Candidate identified through other means
The Home Office (Appendix D) guidance states that:
“If you did not advertise the role, you must, if asked, be able to explain (and, where practicable, provide evidence of) how you identified the worker was suitable– examples include, but are not limited to, the following:
- you identified the worker through a university milk round – you should retain evidence of the milk round as described in Section A, paragraph (h) above
- 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”
Accordingly, it is advisable for applications to contain details of any previous employment with the Sponsor and/or to specify how the employer identified them for the role.
Therefore, although there is more scope for licensed sponsors to manage their own recruitment methods, the Home Office’s guidance is clear that decision makers will expect to see evidence of what recruitment practices took place, or indeed if they did not, details of how the candidate was selected as appropriate for the role.
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