In an effort to reduce immigration, in 2012 the Home Office brought in measures to cap the migration of workers coming into the UK from outside of the UK and Europe.
The test applies specifically to the Points Based System visa category called Tier 2(General). This visa category permits employers to sponsor an individual's work visa from outside the UK or Europe in certain skilled jobs. The Home Office permits those businesses and organisations with a Tier 2(General) License to recruit someone who is neither a UK or European citizen if that business or organisation demonstrates that no suitable worker already living in the UK was found during the recruitment process to fill the job vacancy. It is necessary to think about whether this test applies before the employer assigns a 'Certificate of Sponsorship' to the individual and before the individual applies for their visa.
Are there any exceptions to the RLMT?
It may not be necessary to carry out this RLMT where a worker will apply:
- For an extension of a Tier 2 (General) visa when they are continuing in the same job
- To switch to Tier 2 (General) visa from a student Tier 4 visa without leaving the UK
- For a job type found on the Home Office's 'shortage occupation list' for UK or Scotland
- For a Tier 2 (Intra-Company Transfer) visa
- For a position with a salary over £153,100
- For a doctor or dentist doing speciality training
It is worth noting that there are further requirements for the above exemptions which are summarised in brief. It is suggested that you seek advice if you think that one of these exemptions may be applicable.
How does someone carry out a RLMT?
- An employer will need to advertise the job vacancy for either a continuous 28 day period or in two stages amounting to 28 days to give settled workers and European nationals a fair chance of applying for the job vacancy.
- Two job advertisements are needed. The Home Office has specified the advertising methods to be used and normally placing a job advert via the Jobcentre Universal Jobmatch is acceptable as one method.
- The salary level for the job must exceed the minimum salary rate for the most appropriate job match within the 'Standard Occupational Classification (SOC) codes. The employer must determine the most appropriate code for the job description and salary level offered.
If, after the recruitment period, it is discovered that both a settled worker and an overseas worker have all the necessary skills and experience necessary for the job, the Home Office states that the settled worker be appointed (even if the migrant is more skilled or experienced that the settled worker). This is because a settled worker has been found who has the necessary skills and experience for the vacant position. However, if no suitably qualified persons applied then the Resident Labour Market test has been met, then employer can proceed with the Tier 2 process.
What does the advert have to say?
The content of the advert is very important and must include the following:
- The job title
- The main duties and responsibilities
- The location of the job
- An indication of the salary package, salary range or terms on offer
- Skills qualifications and experience required
- The closing date for applications
What are the timescales for complying with the RLMT?
Planning when to conduct the RLMT is crucial if an employer wish to avoid delay when sponsoring someone under Tier 2 (General).
It is necessary to look ahead to the steps following the RLMT in the Tier 2 process: these include an employer applying to the Home Office for a restricted 'Certificate of Sponsorship' which is then given to the non-European individual so that they can then apply for a Tier 2(General) visa. However, it is necessary to account for the fact it is necessary to have met the RLMT before these following stages are possible and that a Home Office panel decides on applications for restricted Certificates of Sponsorship only once a month.
It is advisable to try to plan when to carry out the advertising process, to try not to miss the next window for applications for restricted Certificates of Sponsorship where possible or it will be a further month until the panel sit again.
Do you have to interview?
If any applicants apply who, on paper, are suitably qualified for the post advertised then it would be necessary to interview these candidates to check their suitability for the vacant position. It is important to keep a paper trail of the recruitment process undertaken, because these documents could be called on by the Home Office for review during an audit. Although an employer may have a preferred candidate in mind that has led them to embark on this process, it is essential that the individual applies in order that his application can be assessed fairly against those of British and European nationals.
I have advertised position previously, can I use those records?
It may be possible, but it would be necessary to check how long ago the adverts were placed and whether they had ran for long enough. It will also depend if the adverts were compliant with the Home Office's guidelines on the content of the advert and also if the right methods of advertising had been used.
Top tips for Employers
- Obtain advice before adverts are placed and have them checked over to ensure that the recruitment process you carry out will be sufficient for Home Office purposes. This will avoid you needing to carry out a further 28 day recruitment period if the adverts are not compliant.
- Take into account timescales of the following stages of the Tier 2 process to minimise delay.
- Keep electronic and/or paper records of the advertising process and applications received because the Home Office can audit
- If the Home Office finds that you have failed to meet RLMT, there is a high risk that your Sponsor Licence will be downgraded to a B-rating, potentially putting the visas of other employees you sponsor on the line. Therefore, seek legal advice if you are in any doubt.
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