The Skilled Worker Visa – the Immigration Rules on Evidence of Recruitment
Immigration solicitors have been advising on the UK points-based immigration system and the immigration rules on the skilled worker visa for a year now, following the immigration rule changes in December 2020. What a year it has been, with most UK business owners saying that the global pandemic has affected their business and industry in some way or other. Companies are either in dire financial straits or business has boomed and they have needed to go on recruitment drives to secure overseas staff after the end of free movement for EU nationals. In this article, our business immigration solicitors look at the immigration rules on evidence of recruitment for the skilled worker visa for those employers who are sponsoring skilled migrant workers.
UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers
For advice on applying for or managing your sponsor licence and recruiting skilled migrant workers call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.
The end of the resident labour market test
Immigration solicitors around the country rejoiced when they were told that the resident labour market test was to be abolished and wouldn’t be required as part of the skilled worker visa application process. That’s because the resident labour market test was universally disliked by HR directors and employers who, however industrious and hardworking, could easily slip up on the cumbersome resident labour market test.
The test may be dead but Sponsorship Licence lawyers say it isn’t as easy to say that the test is at an end so employers have freedom to recruit with no need to obtain and retain evidence of recruitment. The evidence requirements are still there in the new immigration rules but, instead of following a very strict resident labour market test, the rules are now less rigid but UK employers still need to comply with them. Failure to do so could result in:
- A Home Office sponsor licence compliance visit or
- The refusal of an application to renew a sponsor licence or
- The suspension of a sponsor licence or
- The downgrading of a sponsor licence from A rating or
- The revocation of a sponsor licence.
That is why, as delighted as Sponsorship Licence lawyers are to see the back of the resident labour market test, they urge all sponsor licence holders to fully understand the skilled worker visa evidence recruitment rules and , if in doubt, to speak to Sponsorship Licence lawyers for either expert legal advice, training for key personnel or for help with sponsor licence management services.
For advice on recruiting through a sponsor licence or sponsor licence management call OTS Solicitors on 0203 959 9123 or contact us online.
The new evidence of recruitment rules and the skilled worker visa
The immigration rules relating to the skilled worker visa are contained in Appendix Skilled Worker. Whilst the resident labour market test has been abolished the Appendix Skilled Worker and Home Office guidance does detail the evidence of recruitment requirements that HR staff and recruiters are expected to follow when sponsoring employees on skilled worker visas.
Sponsorship Licence lawyers say that over the last twelve months your business should have abandoned the resident labour market test and instead now focus on evidencing that:
- The role you are seeking to recruit and fill is a genuine vacancy.
- The skilled worker visa applicant is genuinely able to carry out the skilled sponsored employment.
- The role that the skilled worker visa holder will be undertaking is for your company – in other words the skilled migrant worker won't in effect be working full time for an employer who doesn’t hold a Home Office sponsor licence on an agency or contractual basis.
Unless a UK employer can satisfy the above criteria, they should not allocate a certificate of sponsorship to a prospective employee and skilled worker visa applicant.
The genuine vacancy requirement
The genuine vacancy requirement is needed to show that there is a real job available and that the job to which the certificate of sponsorship relates is not a ‘sham’.
Unlike the old Tier 2 (General) visa and resident labour market test, the employer doesn’t have to advertise the job first to UK workers and to use a very precise format for the advert. Instead, the sponsoring employer has to show how the prospective employee was identified, irrespective of whether or not they use a formal advert or recruitment process.
Appendix D of the immigration rules say that if a job vacancy was advertised by the sponsoring business, the employer must:
- Keep a screenshot of the advert or a copy of it.
- Retain details of the text in the advert.
- Keep information about where the job was advertised and for how long a period.
- Have a record of the number of job applicants and those that were shortlisted.
- Retain information about the recruitment process and how the decision was taken to allocate a certificate of sponsorship to a skilled migrant worker seeking a skilled worker visa.
Although there is no legal requirement to advertise a job vacancy, Sponsorship Licence lawyers say if you don’t do so then it is essential to keep a record of the evidence of recruitment. For example, the vacancy could have been filled on the recommendation of a former UK tutor of an international student who has returned overseas and who therefore doesn’t meet the eligibility criteria for a graduate visa. Alternatively, an international student may have done an internship at the office and through the internship process the sponsoring employer knows that the employee has the necessary skills to do the job.
Sponsorship Licence lawyers recommend that UK business owners are not blasé about evidencing their recruitment of skilled migrant workers now the resident labour market test has been abolished. That’s because knowledge of the immigration rules and good sponsor licence management and the right systems should ensure that a business doesn’t encounter difficulties with the allocation of certificate of sponsorship, recruitment of skilled worker visa applicants or the renewal of their sponsor licence.
UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers
For advice on sponsoring employees and sponsor licence management call the Sponsorship Licence lawyers at OTS Solicitors on 0203 959 9123 or contact us online.