- When "suitable" is better than "best"
- Advertising requirements for RLMT are changing
- Does this affect your sponsor duties in relation to the RLMT?
- ‘Cap’ on Restricted Certificates of Sponsorship
When “suitable” is better than “best”
A sponsor licence is usually required if an employer is looking to recruit a non-EEA migrant who would require a visa to live and work in the UK. Over 29,000 companies in the UK are currently registered as Tiers 2 and 5 sponsors of migrant workers. In doing so, they have demonstrated that they are a genuine company, registered and actively trading in the UK that poses no threat to immigration control, with the infrastructure needed to fulfil its immigration related roles and HR systems that are compliant. However, your company’s obligations don’t just stop there.
Before employing a non-EEA migrant under a Tier 2 certificate of sponsorship, the sponsor is obliged to carry out the Resident Labour Market Test (RLMT). The RLMT and the Home Office guidance require the sponsor to advertise the role in two forums for a period of 28 days to allow settled (EEA) workers to apply, before recruiting a migrant worker. If, during the advertising process, a suitable settled worker applies for the role, they must be given the role in preference to a migrant worker.
In R (on the application of Sheraz Khan) v The Secretary of State for the Home Department the High Court recently considered a sponsor’s obligations when carrying out RLMT and reiterated that the RLMT is not about finding the best candidate for the role, but checking whether there is any settled worker who would be suitable.
In this case, the Court held that the requirements of the RLMT had not been met as the employer failed to provide any contemporaneous evidence to show why 35 applicants, who were not shortlisted for interview, were not suitable for the role.
Advertising requirements for RLMT are changing
- The Universal Jobmatch website will close this month and will be renamed ‘Find A Job’.
Currently companies wanting to employ migrant workers under the Tier 2 (General) scheme must first complete a RLMT to demonstrate that the vacancy being filled is genuine and cannot be filled by a settled worker, as well as confirming that the position is skilled. To do this, employers must advertise the position they wish to fill in two places, one of which must be on Universal Jobmatch (UJM), a website where it is free to list vacancies.
However, from 14 May this year, UJM is closing and will be replaced by a successor, Find A Job.
It is always important to retain evidence of the advert in case it is required to support a subsequent Tier 2 application to hire a migrant worker. If you have advertised on UJM within the last six months, it is even more important to retain the information. If you don’t, you may not be able to evidence your RLMT and will have no option but to advertise again, causing a further 28 days’ delay. Access to existing ‘Universal Jobmatch’ accounts will be available up until 17 June 2018, after which they will no longer be accessible as existing accounts will not be transferred to Find A Job.
Although the rules and guidance are yet to be updated, UKVI advise that references to UJM within the Rules and Guidance should be interpreted as including its successor Find A Job.
Does this affect your sponsor duties in relation to the RLMT?
In a word, no. Aside from the website name change, nothing else is different. Your business must continue to retain evidence that you have advertised a job online for the requisite 28 days in two places.
You must keep a screenshot from the relevant government website on the day the vacancy was first advertised or, if the date the vacancy was first advertised is clearly visible, a screenshot can be taken at any point during the period the vacancy is advertised.
The screenshot must clearly show all the following:
- the logo of the relevant government website hosting the job advertisement
- the contents of the advert
- the vacancy reference number for UJM vacancies – this is the ‘Job ID number’
- the date
- the URL for UJM vacancies as this also contains the Job ID number
- a closing date for applications
‘Cap’ on Restricted Certificates of Sponsorship
It has long been believed that the demand for Restricted Certificates of Sponsorship (RCoS) has outstripped supply but until now there has been no confirmation from the Home Office as to the extent of that difference. A recent Freedom of Information Request revealed that the actual figures for December 2017 and January 2018 showed an excess of demand of more than 1,000 per month. Furthermore, April 2018 marked the fifth month in a row that the allocation of RCoS was over-subscribed. The effect on businesses is the development of skills shortages as migrant workers are denied employment in the UK and genuine skilled vacancies within the public and private sector are left vacant. While each application request met the requirements of the immigration rules, they were rejected purely on basis of the government’s ‘cap’ on the number of workers permitted to enter the UK each month.
If the monthly allocation is oversubscribed, the highest scoring applications are prioritised and, consequently, some lower scoring eligible applications miss out on a RCoS, even if they meet the minimum requirement. In the event of a ‘tie’ (i.e. there are more applications with the same number of points than available RCoS), they are issued with a RCoS if the monthly limit would not be exceeded by more than 100; otherwise they are all refused, and the following month’s allocation adjusted accordingly. Priority allocation is given to both jobs at PhD level and those listed on the government’s shortage occupations list. Thereafter, the subsequent key consideration is the proposed level of salary being offered to the migrant worker. Since December last year, only those prospective migrant workers offered a salary of approximately £50,000+ per annum have managed to secure their requested Tier 2 RCoS.
If you need any assistance with business immigration issues, then please get in touch.
