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The Skilled Worker Visa –Evidence To Show a Genuine Vacancy

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Back in 2020, when UK employers recruited overseas workers on Tier 2 (General) visas, HR directors knew that they would have to conduct a resident labour market test before being able to recruit a skilled migrant worker on a work visa. However, with the introduction of the skilled worker visa, the resident labour market test has been scrapped. Whilst that is good news, UK employers want to know what Home Office immigration guidance they need to comply with to recruit overseas workers on skilled worker visas.

UK Immigration Solicitors

For expert immigration law advice on hiring skilled migrant workers or help with your sponsor licence application and sponsor licence management call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online.

The abolition of the resident labour market test

If you want to recruit skilled migrant workers it is no longer necessary to undertake a resident labour market test before you can proceed with the recruitment of overseas workers. At first read, it appears as if employing skilled migrant workers is easier under the skilled worker visa route .That isn’t necessarily the case as employers still need to provide evidence of a genuine vacancy.

The realisation of the need to prove recruitment activities before a successful job applicant can secure a skilled worker visa has led some HR directors to exclaim that the resident labour market test, whilst  rigid, frustrating and time consuming to comply with, was at least clear cut and well structured.

What has replaced the resident labour market test?

If a UK employer wants to employ an overseas worker from a non-EEA country or an EU citizen (who doesn’t meet the eligibility criteria for pre-settled status or settled status under the EU Settlement Scheme) then the employer will need:

  • A Home Office issued sponsor licence to sponsor skilled migrant workers on skilled worker visas.
  • To be able to demonstrate that the vacancy or vacancies that the company needs to fill through the employment of skilled migrant workers are genuine job roles and vacancies.
  • The skilled migrant workers are genuinely able to undertake the roles.
  • The skilled migrant workers will be working for the sponsor licence holder. In other words, the sponsor licence holder isn’t an agency that will allow third parties to effectively employ the workers on an agency or sub-contracted basis so the third party doesn’t have the hassle of securing a sponsor licence or complying with Home Office rules on the management of the sponsor licence.

If a UK employer can't satisfy the above criteria the Home Office is likely to refuse the skilled worker visa application.

How does a UK employer prove that they have genuine vacancies?

In the absence of conducting a resident labour market test how does a UK sponsoring employer prove that their job vacancies are genuine? The answer lies in Appendix D to the Home Office guidance.

The guidance states that sponsoring employers must be able ‘’to show how you have recruited your sponsored workers….For other routes, there is no formal resident labour market test but you must still be able to explain (and, where appropriate, provide evidence of) how you recruited the worker – this is to help us assess whether the vacancy is genuine’’.

The guidance goes onto say that a sponsoring employer must retain evidence of any recruitment activity undertaken to fill the post that the skilled worker visa applicant has secured. If your business didn’t advertise the role, there must be an explanation given as to how the overseas worker was recruited to enable the Home Office to ascertain if the job is genuine.

If job advertising takes place a sponsoring employer must retain:

  • Details of any advertisements placed including a screenshot, printout or photocopy of the advert, or a record of the text of the advert and information about when and where the job was advertised and for how long.
  • A record of the number of job applicants and the number of people shortlisted for interview or for other stages of the recruitment process.
  • Evidence showing the process used to identify the successful job applicant, such as a copy or summary of the interview notes for the successful job applicant or brief notes on why the successful job applicant was selected and why other candidates were rejected or information on the scoring or grading process used in the recruitment process. The sponsoring employer doesn’t have to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful job applicants.

If the job applicant made a speculative application, then the sponsoring employer still needs to be able to evidence how the skilled worker visa applicant was recruited. For example, if the job seeker made a speculative job application the sponsoring employer will need to provide interview notes or other evidence that a recruitment process was followed.

The Home Office assessment process

When a Home Office official is assessing whether the job relating to the skilled worker visa application is a genuine job or not, they will ask the following types of question:

  • Does the role exist in the company?
  • If the job was advertised, is the job the skilled worker visa applicant is being recruited for consistent with the job advert?
  • Was the job advert written or posted in a way that would deter settled UK based job applicants from applying for the job?
  • Has the job description been exaggerated to meet the skilled worker visa eligibility criteria?
  • Has the job been created to allow an overseas based worker to come to the UK or is the job a genuine job?

Getting the genuine vacancy test right is key to successfully recruiting EU and non-EEA nationals on skilled worker visas through sponsorship and also crucial to the retention of your company sponsor licence. If your business is in any doubt as to how to meet the genuine vacancy test or the evidential requirements or sponsor licence management its best to take specialist legal advice.

UK immigration solicitors 

For specialist advice on hiring skilled migrant workers ,help with your sponsor licence application  or sponsor licence management and sponsor licence compliance call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.

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