DavidsonMorris

DavidsonMorris

davidsonmorris.comdavidsonmorris.comdavidsonmorris.comClient Satisfaction
Region Area

News and developments

Complying with the Resident Labour Market Test

When an employer wishes to recruit workers from outside the EEA through Tier 2 or Tier 5 sponsorship, they are legally required by the UK Visas and Immigration (UKVI) to carry out the Resident Labour Market Test (RLMT).

The RLMT requires that the employer advertises any vacancy within the UK first to ensure that there are no suitable UK resident workers who could fill the position, before seeking to recruit non-EEA workers through sponsorship for the role.

The purpose of this test is to ensure that the employer has tried to hire from the domestic labour market and that UK-resident workers, such as British citizens and those with settled status, do not ‘miss out’ on jobs in favour of overseas nationals.

RLMT requirements on employers

The rules and requirements of the RLMT comprise three key areas – advertising, recruitment and record-keeping.

RLMT: Advertising

Two advertisements must be created for the position, each advert running for a minimum of 28 days. These adverts can be run concurrently or at different times.

The adverts must appear on a minimum of two separate and approved recruitment platforms. One of these platforms must be Universal Jobmatch, or Jobcentre Online for employment in Northern Ireland. Other platforms that may be used include national newspapers, professional journals, university milk rounds or recruitment websites.

Each advert must include the following information:

  • the exact job title that will appear in the hired worker’s employment contract

  • the actual salary range that will be made available to the hired worker

  • the date that the advert was posted and the closing date for applications, bearing in mind that the advert must run for a minimum of 28 days

  • the name of the employing company, although it isn’t necessary to include the company name if the vacancy is advertised through a recruitment agency. However, if this is the case, the connection between the employer and the recruitment agency must be documented.

  • where the advertised job will be located

  • an accurate and detailed job description stating what roles and responsibilities the job entails and the experience, skills and qualifications required for the position

    • Once the advert has been placed, it cannot be amended. If changes must be made to the advert, it will generally be necessary to re-advertise the position, again adhering to the RLMT requirements of two adverts each for 28 days with the above content.

    Each advert must run its full 28 days and not be cut short for any reason.

    RLMT: Recruitment

    The purpose of a using an RLMT is to ensure and demonstrate that all applicants have been treated fairly and considered on the basis of their suitability for the role advertised.

    Each person who applies for the position advertised must be reviewed for the role, regardless of whether they are a UK resident worker or a non-EEA worker.

    Each applicant who satisfies the requirements for the role, e.g. has the required experience, skills and qualifications, must be invited to interview for the position.

    The suitability of applicants must be judged solely on the eligibility requirements stated in the advert. It is not appropriate to refuse interview or employment to an individual based on factors not mentioned in the advert.

    The applicant finally selected must meet all of the requirements stated in the advert and it must be possible for the employer to demonstrate their suitability over other applicants.

    The employment contract for the successful applicant must start after the 28 days of the related advertisement comes to an end.

    RLMT: Record-keeping

    As an employer, you must be able to demonstrate to the UKVI that you have correctly followed the requirements of the RLMT and recruited the best and most suitable candidate for the role advertised. The best way to do this is to thoroughly document the entire process.

    The type of records you need to compile to satisfy the UKVI that the requirements of the RLMT process have been adhered to include:

  • Where the vacancy is advertised online, a screenshot of each advert on the day it was posted showing the date the advert first appeared and the relevant URL, converted into a pdf document.

  • Where the advert is placed in a newspaper, journal or other physical publication, it is necessary to keep a copy of the advert in that format, e.g. a newspaper clipping or the entire journal.

  • Where a rolling recruitment programme is used, documents must be compiled to demonstrate this. A rolling recruitment programme identifies suitably skilled individuals for future recruitment into roles that do not exist at present.

  • Where the post is advertised through a recruitment agency, a copy of the contract between the employer and the recruitment agency and a related invoice. The responsibility for adhering to the requirements of the RLMT lies wholly with the employer so make sure the recruitment agency is fully aware of what is needed from them.

  • Where the post is advertised through a higher education ‘milk round’, that is, through recruitment events at universities, a letter on headed paper from each university which states the dates of the event and the format of the event, e.g. a presentation. If a university milk round is used as part of the recruitment process, a minimum of 3 universities must be visited.

  • Details of all short-listed applicants, including their names and addresses.

  • A complete copy of each short-listed application in its original format, whether that is an email or a paper form, for instance.

  • Detailed records of final stage assessments of the short-listed applicants.

  • Where UK resident applicants are unsuccessful, an explanation of why they were rejected along with any supporting evidence.

  • For the successful applicant, evidence that they meet all requirements, e.g. skills, experience, qualifications, for the advertised position, including copies of their qualification certificates. Where the advert states the need for certain ‘soft skills’, e.g. leadership or negotiation skills, it will be necessary to demonstrate that the applicant also met these requirements.

    • The UKVI can at any time request a copy of the advert and further information, so it is always in your best interests as an employer to have a full and detailed record available.

    Exemptions to the resident labour market test

    There are a number of situations where it is not necessary to use the RLMT before sponsoring a non-EEA worker. The following information is not exhaustive, but the main exemptions are:

    Continuing employment

    Where the non-EEA worker is continuing in the same position with the same employer and therefore wishes to extend their immigration status and any related time restrictions, it will not generally be necessary to use the RLMT.

    Shortage of occupation list

    Where the role appears on the Shortage of Occupation List, it will not be necessary to follow the rules of the RLMT.

    The Shortage of Occupation List can be found in Appendix K of the UK Immigration Rules. This list is reviewed on a regular basis by the Migration Advisory Committee and should therefore be checked by an employer before beginning any RLMT process.

    This exemption does not apply to nurse roles.

    Post study work

    Where a non-EEA individual who is already in the UK wishes to change their immigration status from Tier 1 (Post-Study Work or Graduate Entrepreneur) to a Tier 2 status, an employer is not required to conduct a RLMT.

    The same exemption applies where the non-EEA individual was given permission to be in the UK as a Tier 4 immigrant or as a student, and during their stay they obtained a UK bachelor’s degree or postgraduate degree, or completed at least 12 months’ study towards a PhD.

    High earner

    Where the role will merit a total salary package of a minimum of £159,600, it will not be necessary for an employer to carry out an RLMT to recruit for that position.

    In this situation, the hired non-EEA worker would be termed as a ‘high earner’.

    What can go wrong?

    The rules of the RLMT are extensive and strict, and where the UKVI feel that one or more of the required criteria have not been met, enforcement action can be taken against the employer, such as or downgrading, suspending or revoking an employer’s sponsorship license.

    Common areas of compliance risk include:

  • Insufficient record-keeping, which at the best may lead to a request for further information to be submitted and at the worst lead to the rejection of the whole recruitment process.

  • Not fully briefing the recruitment agency you use, so that they are unaware of what they need to do to fulfil the RLMT requirements. In this case, the responsibility for meeting those requirements will fall on the employer and the UKVI may well reject the recruitment process.

  • Running the job advert for less than the required 28 days because the perfect candidate has been found would be counter to the RLMT requirements.

    • © 2024 Legalease Ltd. All rights reserved

    Registered company in England & Wales No. 2423756 VAT 324572722

    Registered address: 188 Fleet Street, London, EC4A 2AG