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Getting the Resident Labour Market Test right

19 February 2019 #Immigration #Inward Investment


The Resident Labour Market Test (RLMT) is a key part of the Tier 2 (General) Sponsorship System. It is also one which has the potential of causing the most issues. This is because if not done right, the employer must re-do the test again causing significant delays which may result in losing their ideal candidate. It is also of note that if the RLMT is not conducted properly or evidence of it is not kept, the UKVI is very likely to take compliance action against the Sponsor.

It is therefore important to get RLMT right the first time.

The first question to ask is whether you need to conduct an RLMT at all. It is required for most job roles unless an exemption applies. Exemptions include those who have been on Tier 4 visas or are continuing in the same occupation with the same sponsor.

If you do need to conduct an RLMT, you must include this as a consideration in your overall timeframe for recruitment. The test itself is carried out by placing two advertisements (one of which must be on the Government ‘Find a Job’ website unless an exemption applies).

The jobs must be advertised for a minimum period of 28 days but can be conducted in two stages. The advertisement must include specific information such as job title, main duties & responsibilities, salary package, closing date among other things. It is important to spend some time drafting the job advertisement as this forms the benchmark upon which the potential migrant must be employed on. This means, for example, you cannot offer the migrant a higher salary than the one offered in the job advertisement.

You are also required to keep specific evidence to demonstrate that the RLMT was carried out appropriately. This evidence can be requested at any time by the Home Office, and a failure to provide appropriate evidence can lead to compliance action including suspension or revocation of the Sponsorship Licence.

It is important to consider the evidence at the outset, as a key part of the evidence, the screenshot,  should normally be taken on day 1 of the job advertisement. This means a failure to take this evidence on the first day could potentially lead to RLMT being carried out all over again which could lead to further costs, delays and potential loss of candidates. There are then further rules on  what the screenshot should contain. This includes specific information such as contents of the full job advertisement, the URL, contents, closing date etc.

The Sponsor must also retain evidence of the interviewing process  such as the number of total applicants shortlisted for interview, their applications and reasons why they were not selected. The recent case of Khan, R (on the application of) v The Secretary of State for the Home Department [2018] EWHC 105 (Admin), confirms that the effect of the RLMT is that a settled worker who is suitable for an advertised post should be recruited in preference to a non-settled worker, even if the latter is the better candidate.

At Clarkslegal LLP we advise Sponsors in all aspects of managing their Sponsorship Licence including how to properly conduct a RLMT. We are able to assist in drafting UKVI guidance compliant job advertisements or check job advertisements drafted by you. We are also able to advise you on the right type of evidence to keep to avoid any compliance issues.

Clarkslegal, specialist Immigration lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Immigration matter please contact Clarkslegal's immigration team by email at immigration@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Hamza Malik

Hamza Malik
Associate

E: hmalik@clarkslegal.com
T: 0207 539 8020
M: 07990 595 483

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