Before offering a job to a migrant worker Sponsors must ensure that they have completed a Resident Labour Market Test i.e. advertised the job to the local workforce to make sure that there are no suitably qualified or experienced settled workers available to do that job. Depending on the job and his visa status, this may apply to an applicant working for another company in your location who wishes to jump ship and who you may consider is already part of the resident work force. There are some exemptions to the RLMT and we work with Sponsors where the jobs on offer are classed as shortage occupations or the salary package is £150k or above. Also, if you are seeking to employ Tier 4 Students or Post Study Workers, provided they meet the provisions, the RLMT is not required.
So, on the basis that the job on offer is not exempt, what do you have to do before offering sponsorship under the Tier 2 General Change of Employment or New Hire from Overseas category?
The UK Border Agency has produced codes of practice listing the jobs that can be offered under Tier 2 at minimum skills levels. Each code gives information on the skill level, appropriate salary rate and tells you how to meet the resident labour market test.
For example – Mechanical Engineers are listed under Section M – Professional, scientific and technical activities, Code 2122. There are a number of related job titles and examples of job tasks. Related to this is the minimum salary which must be paid and the accepted methods of advertising the job – which include Jobcentre Plus (mandatory) and accepted websites. If you employ more than 250 staff you can advertise on your company website.
The vacancy must be advertised for a statutory minimum period 28 calendar days and to ensure that you meet the requirements under the relevant code of practice you must ensure that the advertisement includes the following information:
- the job title;
- the main duties and responsibilities of the job (the job description) – refer to the examples of job tasks on the relevant code
- the location of the job;
- an indication of the salary package or salary range or terms on offer;
- the skills, qualifications and experience needed; and
- the closing date for applications, unless the job is part of your organisation’s rolling recruitment programme (in which case the advertisement should state the period of the recruitment programme).
Salary – this must be at least the minimum required as on the Code of practice however, if the job on offer will be paid at a higher rate, then you must state this in the advert as a lower salary may indicate that less experience is required for the job and the advert will not attract relevant applicants. If a settled worker applies for the job but does not have the necessary qualifications, experience or skills, you cannot refuse to employ them unless you specifically requested these qualifications, experience or skills in the job advertisement.
Will UKBA check that the RLMT has been completed? When you assign a Certificate of Sponsorship, you must provide details of where the job was advertised and therefore must keep screenshots of the adverts which show the Job Reference Number and posting/closing dates.
In addition, Sponsors have “record keeping duties” and must keep records or documents for every sponsored migrant, this includes documents/records from the recruitment process carried out to employ a particular migrant. The certificate of sponsorship must be assigned to the migrant no more than 6 months after you first advertised the job.
It is our experience that Sponsors are often approached by applicants or they embark on a recruitment campaign only to find that the ideal candidate requires sponsorship and their advertising methods are not compliant – if that candidate has the qualifications and expertise you require you will start the recruitment process again!
Non-compliance makes headline news and it is your responsibility as a Licenced Sponsor to ensure that your practices and record keeping processes comply with the UK Border Agency regulations. Failure may result in the loss of your Sponsor Licence and will jeapordise your business operations if you are unable to recruit migrant workers.
Please contact us, we can provide an Assessment and advise on the recruitment process, we also offer in-house training for HR Staff and Recruitment Teams which will ensure that your recruitment and record keeping processes are compliant.