The Resident Labour Market Test is one of the more challenging requirements of hiring under the Points Based System.
While your organisation may already have a tried and tested recruitment policy and process for advertising job roles, as a sponsor licence holder you will need to ensure this satisfies the stringent and particular criteria under the Resident Labour Market Test (RLMT) when hiring a PBS worker.
In practice however, we find advertisements commonly fail to meet UKVI’s requirements.
How can you avoid falling foul of the RLMT and facing Home Office penalties for non-compliance with your sponsor licence duties?
What is the Resident Labour Market Test?
The Resident Labour Market Test (RLMT) was designed as a protectionist measure to preserve and promote the settled UK workforce by requiring UK employers to exhaust options in the resident labour market before recruiting nationals from outside the EEA. Further, the RLMT also requires the employer to confirm the post being filled is in fact genuine.
Under the test, the government want UK employers to evidence that they have tested the resident labour market to ensure the position they would like to fill with an overseas worker cannot be filled by a UK settled individual, and also to confirm the position is skilled and meets the requirements to warrant a visa being issued for an individual to come to the UK to carry out the role.
How to satisfy the Resident Labour Market Test
All PBS licence employers are required to carry out the RLMT to evidence the role in question can only be performed as required by a non-EEA national.
They must advertise the position they wish to fill in two places listed in the guidance issued by UK Visa and Immigration. The following are some of the ‘acceptable’ places to advertise the position:
- National newspaper – must be published at least once a week and marketed throughout the UK
- Professional Journal – published for a particular field and is available nationally
- Milkround – annual recruitment programme where employers from a range of sectors visit universities to give presentations and/or interview students
- Rolling recruitment campaigns – allows companies to select skilled individuals who might fill future, unfilled vacancies rather than specific roles
- Recruitment agencies and head-hunters – where an agency or head-hunter carries out the recruitment exercise they must meet the full requirements of the resident labour market test (ie posting adverts for 28 days etc etc), and you will be fully responsible for this. If the advertising and selection is not done in line with the rules, the Home Office will take action against you.
- Internet – websites are not restricted but they must not charge a subscription fee or any fee to be able to view or apply for the job. Companies can also advertise on their own websites if they are a multi-national organisation, or if they have over 250 employees in the UK.
- All jobs, unless the salary is over the prevailing threshold, must be advertised on the Job Centre Plus website.
The job can be advertised using one method as long as there are two adverts live, i.e. Internet, posting a job on the Job Centre Plus website and on your company website (if the requirements are met) is acceptable.
The RLMT must be carried out for a total of 28 days.
What information needs to be included in the Resident Labour Market Test?
A common area of non-compliance is the information included in the job adverts. Under the Resident Labour Market Test, the following mandatory points must be included on all adverts:
- Job title
- Location of the job
- Indication of salary package
- Main duties and responsibilities
- Requirements
- Posting / Closing dates
Evidence of the advert being posted for the statutory 28 days
You must be able to provide evidence that the job has been posted for the statutory 28 days. Effective record-keeping will be essential to meeting and proving compliance – ensure you have a record of the posting date and closing date.
We also recommend stating the opening and closing dates in the body of the advert.
Note that the standard period for an advertisement to run on Universal Jobmatch is 60 days, but you can set earlier closing dates.
The closing date for applications won’t be visible unless it is included in the main body of the advert, so if you advertise a job with a closing date of less than 60 days, you must make sure that it is stated in the job description.
You must include the closing date in the body of the advert.
You don’t need to include the opening date in your advert, but your screenshot must be dated, and this date will be taken as the opening date unless the site automatically shows the date of posting itself (as the Job Centre Plus site does.)
How will the Home Office know if the adverts have not been posted correctly?
Whilst you do not have to submit a copy of the advert with the application in the UK or overseas, or the request for a restricted certificate of sponsorship, UKVI are within their rights to request a copy of the advert at any point during the application process. Even where the advert is not requested at this point, you should expect to be asked should UK Visas and Immigration visit your offices and inspect files.
So from a compliance point of view, it is important to ensure the adverts are placed correctly as it is your responsibility as a sponsor to keep a record of the adverts on file.
Selecting candidates
When shortlisting candidates, ensure you assess every applicant against the skills, qualifications and experience as set out in the advert and keep records of why applicants were not taken forward for interview with reference to the requirements stipulated in the advert.
Also retain notes from your interviews.
Any settled workers meeting the requirements must be offered the position in preference to any non-resident candidates meeting the requirements, unless the role falls under a PhD-level code, in which case you can sponsor someone if they are the most suitable candidate.
Are there any exemptions to the Resident Labour Market Test?
Given the onerous nature of the RLMT, we are often asked if any exceptions apply, particularly where employers are looking to extend an existing employee’s visa.
The answer is there are certain exemptions to the Resident Labour Market Test. These include among others:
- Extension applications – If an existing employee needs to extend their leave in the UK and continues to do the same job.
- Shortage Occupation – The job code is on UKVI’s shortage occupation list and the employee will be working at least 30 hours per week.
- Previous grant of leave – If the potential employee is applying for Tier 2 (General) leave in the UK and has, or was granted leave to enter or stay in the UK as a Tier 4 migrant or as a student and during their last grant of leave, or a continuous period of leave that includes their last grant of leave, they are within 3 months of completing a bachelor’s or master’s degree or have received final results confirming they:
– have passed and will be (or have been) awarded a UK recognised bachelor’s or master’s degree,
– have finished a minimum of 12 months study in the UK towards a UK PhD. - High earners – The total annual salary package is above the current prevailing threshold (as at September 2018 – £159,600 per annum)
This list is not exhaustive and other exemptions may apply.
Do you have a question about the Resident Labour Market Test?
DavidsonMorris have a specialist team dedicated to supporting employers with their PBS and immigration compliance duties. For advice on complying with the regulations or if you would like to confirm if someone you wish to employ on a Tier 2 visa is exempt from the Resident Labour Market Test, then please contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
