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The Genuine Vacancy Test for Skilled Workers

Posted by: Gherson Immigration

Employers who wished to sponsor skilled migrant workers under the old Tier 2 (General) work permit category would, unless otherwise exempt, needed to show that no suitable settled worker could be identified for the vacancy before sponsoring a migrant worker. This was done by carrying out a Resident Labour Market Test (“RLMT”), a rigid advertising process to prove that the employer had made efforts to recruit from within the resident labour market and that, despite these efforts, no suitable settled worker could be identified. 

With the introduction of the new Skilled Worker category, the RLMT requirement has been scrapped. 

As of 1 December 2020, there is no longer a requirement for sponsor employers to undertake a prescribed recruitment exercise prior to sponsoring a migrant worker. Instead, sponsors seeking to recruit workers via the Skilled Worker category must demonstrate that the role being offered is a genuine vacancy which meets the relevant salary and skill level as set out in the rules. 

When assessing whether the role is genuine, the Home Office will consider the following:

  1. Does the role actually exist?
  2. Has the description been exaggerated?
  3. Has the role been created primarily to enable an overseas national to come to, or stay in, the UK?
  4. If the role has been advertised, are the requirements listed inappropriate or incompatible with the business? Have they been tailored to exclude resident workers?

What evidence should a sponsor have on file to prove that a role is genuine?

The Sponsor Guidance (Appendix D) in respect of keeping records for sponsorship suggests that the following documents should be kept on file to prove that the role is genuine:

If you advertised the role, you must retain all of the following:

  1. Details of any advertisements you placed, including:
  • a screenshot, printout or photocopy of the advert, or a record of the text of the advert; and
  • information about where the job was advertised (for example, website address), and for how long. There is no specified minimum number of adverts you must place, or prescribed method of advertising. (Where you have placed more than one advert, we recommend you retain evidence of all adverts placed).
  1. A record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process.
  2. At least one other item of evidence or information which shows the process you used to identify the most suitable candidate – examples include but are not limited to:
  • 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.

You do not have to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates.

If you did not advertise the role, you must, if asked, be able to explain (and, where practicable, provide evidence of) how you identified the worker was suitable – examples include, but are not limited to, the following:

  • you identified the worker through a university milk round;
  • the worker was already legally working for you on another immigration route and you established they were suitable for the role through their previous performance;
  • the worker applied to you outside of a formal advertising campaign (e.g. they made a ‘speculative’ application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.

Gherson has a wealth of experience in all aspects of UK immigration law and has assisted many licensed sponsors with their compliance matters. If you have any specific questions or queries in respect of your particular circumstances, please do not hesitate to contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2021

Sasha Lal 

  Sasha Lal

  Consultant and Trainee Solicitor in our Corporate Team

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