Employers are generally required to carry out a Resident Labour Market Test before sponsoring a non-EEA worker. The Resident Labour Market Test is designed to protect the settled workforce. This essentially means that before offering a job to a non-EEA foreign worker, the employer must advertise the role in the UK and assess any candidate who applies for it. If there is no suitably-qualified or skilled settled worker available to take up the position, then the employer will be permitted to bring in a non-EEA worker.
How to carry out the Resident Labour Market Test?
The keywords are 2 advertisements, 2 ways and 28 days.
Unless an exemption applies, the employer is required to publish 2 advertisements for the role on an approved recruitment platform for 28 days. Each advertisement needs to run for a total of 28 days and can either be posted at the same time or one after the other.
The start date of the advertising must be within a set period of time from the date that the Certificate of Sponsorship is assigned. This is normally 6 months but it can be more for special cases.
The jobs can be advertised in 2 ways:
- advertise the vacancy for a single continuous period, with a minimum closing date of 28 calendar days from the date the advertisement first appeared;
- advertise the vacancy in 2 stages, with each stage being advertised for no fewer than 7 calendar days but where both stages total a minimum of 28 calendar days - below is an example of this.
The employer must place 2 advertisements using the method as set out in the Tier 2 and Tier 5 guidance for sponsors. In many cases, one of those will be an online advertisement using the Jobcentre Plus Universal Jobmatch service or Jobcentre Online for jobs in Northern Ireland.
The advertisement must contain specified information as set out in paragraph 78(b) of Appendix A of the Immigration Rules. This includes detailed information on the skills and qualifications required for the role, along with information concerning the location, salary and job description, etc. The following details must be included in the adverts:
- Job title;
- Job description;
- Company name;
- An indication of the salary package;
- Advertisement posting and closing dates;
- Skills, qualifications and experience needed.
When publishing the advertisement, sponsors should be aware of the many strict requirements surrounding advertisements and be cautious about the wording, for example, ‘x years of experience’ and language skills. It is important to ensure that any ‘soft skills’ are included in the job description. It is also key that you are able to measure and evidence whether or not a candidate has these ‘soft skills’ during the recruitment process.
Exemptions from the resident labour market test
In some circumstances, the employer does not have to carry out a Resident Labour Market Test, for example:
Continuing to work in the same occupation with the same employer
If the applicant is already working for the sponsor and they need to extend their leave in the same immigration category to continue work in the same occupation, the employer does not need to carry out a Resident Labour Market Test.
The sponsor does not have to carry out a Resident Labour Market Test before assigning a certificate of sponsorship to fill a job in a shortage occupation in Appendix K of the Immigration Rules. However, there is an exception if the job is in the occupation code ‘2231 Nurses’, where the employer must carry out a Resident Labour Market Test.
If the applicant is applying to switch into the Tier 2 General category and they have, or were last granted leave to enter, or to stay in the UK under one of the following categories, they are not required to carry out a Resident Labour Market Test:
- Tier 1 (Graduate Entrepreneur) migrant;
- Tier 1 (Post-Study Work) migrant;
- Tier 4 migrant.
If the certificate of sponsorship shows that the applicant’s gross annual salary (including such allowances as are accepted) will be at least £159,600, the sponsor is not required to carry out a Resident Labour Market Test.
Industry specific exemptions
- Academic leave;
- Supernumerary research positions;
- Postgraduate doctors and dentists in speciality training;
- High value inward investment posts.
Practical tips for employers
It is of key importance for the sponsor keeping records of the advertisements and conduct a fair and objective recruitment process which identifies the applicant best suited to the role.
The successful candidate must meet the criteria displayed by the roles advertisement and the sponsor must be able to prove this to the Home Office. It is good practice for sponsors to keep records of the recruitment process, especially for the candidates who are interviewed, i.e. CVs, applications and shortlists for those going to final interview, interview notes, and reasons for rejection etc.
Last but not least, employers should bear in mind that a suitable settled worker means any settled worker who has the necessary skills and experience. If the employer finds that there is more than one candidate with all the necessary skills and experience, they must appoint the settled worker even if the migrant is more skilled or experienced. Or they could appoint both.
Contact Our Business Immigration Barristers
For professional advice and assistance with completing a compliant Resident Labour Market Test or any other aspect of employing a non-EEA national skilled worker, contact our business immigration barristers on 0203 617 9173 or via our enquiry form.