What is the Resident Labour Market Test?
OTS London immigration solicitors often receive questions about the Resident Labour Market Test. The title of the test sounds complicated and in the opinion of many London immigration solicitors the UK Visas and Immigration rules and regulations relating to the Resident Labour Market Test are a bit of a minefield for employers to navigate without expert help. It is important for employers to get help to steer their way through the regulations on the Resident Labour Market Test as failure to comply with the rules can have serious consequences on the employer’s ability to recruit migrant workers.
When does an employer have to consider the Resident Labour Market Test?
If an employer wants to employ a Tier 2 (General) migrant worker to carry out a job that is not on the current UK shortage occupation list, they can only do so if they have carried out the Resident Labour Market Test. The test is designed to ensure that there are no workers, other than migrant workers, who can fill the Employment vacancy. The test refers to the employer advertising the job to “settled workers”. It is only if there are no settled workers that the vacancy can be filled by a migrant worker.
Who is a settled worker?
For the purposes of the Resident Labour Market Test settled workers are:
• UK nationals; and
• EEA nationals exercising EU Treaty Rights in the UK; and
• Some citizens of British Overseas Territories (not all citizens are included); and
• Commonwealth citizens if they are allowed to enter or remain in the UK because a grandparent was born in the UK; and
• People who have settled status under the Immigration Act 1971.
Who is a “suitable” settled worker?
top London immigration solicitors are often asked about whether they need to employ a settled worker job candidate to fill their Employment vacancy when they think that offering the position to a migrant worker with a Tier 2 (General) visa would better meet the company needs.
UK Visas and Immigration rules state that the job has to be offered to a “suitable” settled worker, with “suitable” being defined as a prospective employee who has the minimum skills and experience to carry out the job specification.
If there are multiple job applicants, including settled workers and migrants, the settled worker must be employed in preference to the migrant if the settled worker has the minimum level of skills and experience for the job. This applies even if the employer thinks that the migrant worker is the far better candidate for the role, either as a result of their additional qualifications, work history or personality.
Advertising the job vacancy
UK Visas and Immigration have set out very specific rules and regulations governing how the job vacancy should be advertised in order to satisfy the Resident Labour Market Test. The vacancy must be advertised for a minimum period of 28 days before the company can employ a migrant worker and issue a certificate of sponsorship.
In order to avoid employers not making genuine efforts to recruit suitable settled workers, UK Visas and Immigration rules state that the advertisement must:
• Specify the job title, provide a job description, give details of the main duties and responsibilities, an indication of the salary or the salary range that should be in line with the current market standards, the required qualifications and skills and experience, the job location and the closing date of the job application;
• Fulfil industry specific job advertising criteria in accordance with the Immigration Rules;
• Be placed in at least 2 listed places specified in the Immigration Rules, such as newspapers, websites, and the Job Centre online or professional magazines that are relevant to the job vacancy.
The best London immigration solicitors recommend that careful attention is paid to the description of the job role and the skills and expertise required to successfully apply for the role. If care is not taken in drafting the job specification the employer may find that settled workers could say that they are suitable candidates for the job whereas if the job specification had been carefully thought through the pool of suitable settled candidates for the advertised job position might be either smaller or non-existent.
Record keeping
In addition to paying attention to detail with regards to the job specification it is just as important, in the view of top London immigration solicitors, to keep a record of job applicants and why any settled workers who apply for the post are not considered to be suitable to fulfil the role. If adequate records are not kept recording why any applicants were not classed as suitable, the Home Office may refuse to grant a Tier 2 visa to a migrant worker. That is because UK Visas and Immigration may not be satisfied that the Resident Labour Market Test was carried out with a genuine advert designed to attract settled workers or that the employer has inappropriately chosen a migrant worker over a settled worker.
The importance of complying with the Resident Labour Market Test
The Resident Labour Market Test was designed to meet a very clear Home Office policy, namely to ensure that suitable settled workers are employed in non-shortage occupation job vacancies in preference to migrant workers. The politics and rationale behind the Resident Labour Market Test are self-evident. The consequences to an employer of failing to carry out the Resident
Labour Market Test in accordance with the rules and regulations can be very damaging because if an employer does not to comply with the test a Tier 2 (General) visa will be refused and, in addition, there may be consequences for the employer’s Sponsor Licence.
OTS Solicitors regularly advise on all aspects of business immigration and have substantial expertise in advising on the Resident Labour Market Test and securing and maintaining Sponsor Licences for employer companies as well as the management of Sponsor Licences and representation in resolving Sponsor Licence difficulties. OTS Solicitors expert advice on business immigration is recognised by the legal directory of leading UK lawyers, Legal 500. The firm is ranked for business immigration services. In addition, OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.
For more information on the Resident Labour Market Test or any other aspect of business immigration law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help.