As sponsors will be aware, for some Tier 2 (General) applications before 1 December 2020 it was necessary to advertise the role for 28 days as part of a resident labour market test (RLMT). When the Skilled Worker category replaced Tier 2 (General) from 1 December 2020, the RLMT was abolished. However, the guidance (known as Appendix D) clarifies that certain documents about the recruitment process of sponsored workers still need to be held on file.
The guidance on this point is split into two:
1. Where a RLMT applies
If you recruited a Tier 2 (General) sponsored worker before 1 December 2020 and a RLMT was required, you must continue to hold on file the relevant documents. Some current routes including T5 Religious Worker, T5 Creative or Sporting Worker and T2 Sportsperson may also require an RLMT to be carried out before the application is submitted.
Sponsors should continue to hold on file documents such as:
- Screenshots of the adverts on the first day of placement;
- CVs of all applicants who were shortlisted for final interview; and
- Reasons why each settled worker was unsuitable for the role.
2. Where a RLMT does not apply
The new guidance clarifies that where a formal RLMT has not been required (such as for a Skilled Worker or Intra-Company Transfer application), sponsors should still retain evidence of any recruitment activity they have undertaken. This is to assist the Home Office in assessing whether the sponsored role is a genuine vacancy.
a) If you have advertised. Importantly, sponsors are not required to advertise the role where a RLMT is not required. However, if you have advertised the role you should retain:
- Copy of the advert. Details of any advertisements placed, including a screenshot, printout or photocopy of the advert, or a record of the text of the advert and the website address. A note should also be made of for how long the role was advertised. If you did advertise, you are not required to place more than one advert but if you did should retain evidence of all the adverts.
Unlike for a RLMT, the guidance does not stipulate where the advert should be placed, the required contents of the advert or for how long it should be placed;
- Number of applicants. A record of the number of people who applied for the job should be kept, as well as the number of people shortlisted for interview or for other stages of the recruitment process; and
- One other item of evidence. At least one other item of evidence or information which shows the process you used to identify the most suitable candidate, such as for example:
- a copy or summary of the interview notes for the successful candidate;
- a list of common interview questions used for all candidates as part of your selection process;
- brief notes on why the successful candidate was selected and why other candidates were rejected;
- information about any scoring or grading process you used to identify the successful candidate; or
- any other relevant information or evidence
b) If you have not advertised. Where you have not advertised the role, you must be able to explain and where possible provide evidence of how you identified the sponsored worker was suitable for the role. Examples could include identifying the sponsored worker from:
- Already working for you in a different immigration category;
- A speculative application; or
- A university milkround.
The guidance does not mention it, but it must also be sufficient that you have identified a candidate by for example word-of-mouth, reputation or from a recruitment agency.
Right to work grace period
Following an update in the Home Office employer’s guide to right to work checks today, we also wanted to take this opportunity to remind you of the rules on the right to work grace period which exists for EU (and EEA and Swiss) citizens until 30 June 2021. As mentioned in our previous blog, Annex B of the updated guidance makes clear that until 30 June 2021 employers can still rely on checking an EU citizen recruit’s EU passport or national identity card for right to work purposes.
Employers can also check online an EU citizen’s EU Settlement Scheme or other digital immigration status but cannot insist on it. Until 1 July 2021 employers are not required to differentiate between those EU citizens who arrived before or from 1 January 2021. Any EU citizen arriving for the first time from 1 January 2021 will need to apply for permission to work, such as a Skilled Worker.
From 1 July 2021, employers are not required to carry out retrospective right to work checks and further guidance will be issued for checks from that date.
Ilda de Sousa
Professional Support Lawyer