Advertising a role, that can’t be too hard, can it? If only it was that simple. We find a lot of employers advertise positions, find suitable migrant workers to fill the posts and are then unable to use the adverts they have posted as they do not meet all the requirements set out by UK Visas and Immigration.
What is the Resident Labour Market Test and why is it essential for UK employers wishing to employ non British or Non-EEA staff?
The resident labour market test has been put in place by UK Visas and Immigration to protect the settled workforce and confirm the post being filled is genuine.
The government want to confirm that UK employers have tested the market to ensure the position they would like to fill with an overseas worker cannot be filled locally 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.
This exercise needs to be carried out for a total of 28 days.
How and where can the Resident Labour Market be carried out?
Sponsors who are required to carry out the test must advertise the position they wish to fill in two places listed in the guidance issued by UK Visa and Immigration.
All jobs unless the salary is over £72,500 must be advertised on the Job Centre Plus website.
The following are a few 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 – this is an 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
• 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.
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.
Are there any exemptions to the Resident Labour Market Test?
This is a common question employers pose to us, especially when they are looking to extend an existing employee’s visa.
There are certain exemptions to the Resident Labour Market Test. The main exemptions for when resident labour market test does not need to be carried out are as follows:
• 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 under one of the following:
a) Tier 1 (Post-study work) – closed
b) Tier 1 (Graduate Entrepreneur) – closed
c) they have, or were last granted permission to 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 have received final results confirming they:
o have passed and will be (or have been) awarded a UK recognised bachelor’s or master’s degree,
o have finished a minimum of 12 months study in the UK towards a UK PhD.
• High earners – The total annual salary package is £155,300 or above
This list is not exhaustive and other exemptions do apply. If you would like to check if someone you wish to employ is exempt from the Resident Labour Market Test, then please call us on 020 7494 0118 and one of our experienced staff will be able to advise further.
What information needs to be included in the Resident Labour Market Test?
As mentioned earlier, a fair few employers are caught out right at the end of the Resident Labour Market test as they have missed out essential information from the adverts as set out by UK Visas and Immigration.
The following are mandatory points which must be included on all adverts:
• Job title
• Location of the job
• Indication of salary package
• Main duties and responsibilities
• 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. To do this you must ensure that you will have a record of the posting date and closing date.
To ensure compliance, we recommend that you state 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.
How will the Home Office know if the adverts have not been posted correctly?
This has to be one of the most common questions sponsors we are asked, “well, we are not submitting a copy of the advert so how will they know the closing date is missing?”.
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, UK Visas and Immigration are within their rights to request a copy of the advert at any point during the application process.
If the advert is not requested at this point, then it will definitely be spotted should UK Visas and Immigration decide to visit your offices and inspect files. Therefore, 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.
To avoid any issues with adverts or confirm if they have been placed correctly, the staff at DavidsonMorris Solicitors are experienced in reviewing and advising, why not send us a copy of the adverts you have live at present to ensure they meet all the requirements?