In most cases, before a Tier 2 General sponsor can employ a non-EEA national on a Tier 2 General visa, it will first need to conduct a Resident Labour Market Test (RLMT).
The RLMT is put in place to protect the settled workforce in the UK and means that you must advertise the job to give settled workers (UK nationals, EEA nationals, those with Indefinite Leave to Remain and permanent residence rights in the UK) a chance to apply. You can only recruit a non-EEA national if either:
- you have completed the RLMT in accordance with the Home Office guidance and can show that no suitable settled worker is available to fill the job; OR
- the job is exempt from the RLMT (for example because a migrant worker that you want to employ is switching from inside the UK from Tier 4 student visa OR the salary you offer is £159,600 or above OR a job role is on the Home Office shortage occupation list here ).
How to conduct Resident Labour Market Test
RLMT is a job advertising process that needs to be conducted in a strictly prescribed format to meet the Home Office requirements. We frequently have enquiries from Tier 2 sponsors who tell us that they already advertised the role and now want to proceed with assigning a Certificate of Sponsorship (COS) to a migrant. When we review their advertising records in most, if not nearly all cases, the job advertising was not conducted in line with the Home Office requirements and it needs to be repeated.
Steps you should take in the RLMT process:
- Ensure that your job advert has all the mandatory components listed in the Home Office guidance;
- Ensure that you advertise the job using the methods permitted in the Home Office guidance, one of which in most cases must be a government site called ‘Find a Job’ here and the other can be any website of a prominent or professional recruitment organisation (there are some other methods of advertising permitted by the Home Office, such as a national newspaper or a professional journal, but most of our clients prefer to advertise online on recruitment websites);
- Ensure that you take full screenshots of each entire advert on the first day it appears live;
- Ensure that the screenshot has a date and URL and is taken from the live advert;
- Ensure that each advert appears live for not less than 28 days (this is counted from the date the advert first appears online and screenshot is taken);
- Ensure that your closing date in the advert is not less than 28 days from the date you take the screenshot);
- Ensure that you keep records of applications received and the selection process conducted, including notes from the interviews with candidates.
Criteria how to assess job candidates
If there is a suitable settled worker identified from the RLMT, the role should be offered to him/her. Suitable settled worker means any settled worker who has the skills and experience that you are seeking as described in your job advert.
If you find that you have more than one candidate with all the necessary skills and experience you advertised for, where one is a settled worker and the other is a migrant, the Home Office requires that you must offer the role to the settled worker even if the migrant is more skilled or experienced (for example, in the advert you ask for 2 years experience and a migrant has 3 years experience but there is a settled worker applicant with 2 years experience). The only exception is if the job falls within one of the PhD level standard occupation classification SOC codes listed on the Home Office list here, when you can appoint a migrant if they are the most suitable candidate.
Migrant already working for you and his job changes to a different SOC Code
If you want to change migrant’s core duties and as a result the job will fall under a different SOC code, you will need to carry out a residence market test (unless the salary is £159,600 or above OR the job is on shortage occupation list) and the migrant will need to apply and receive approval of a new Tier 2 General visa before starting the new role. It is vital that employers ensure that the migrant does not start working in the new role before obtaining a visa as such employment is considered illegal by the Home Office.
If the migrant is already working for you on a Tier 2 General visa and they need to extend their leave in the same immigration category to continue working for you in the same job OR their job duties are changed but the job still remains under the same SOC code , you do not need to carry out a resident labour market test.
The note reflects legal position on 26th April 2019 and is for general information purposes only and does not aim to be comprehensive or to provide legal advice. We accept 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 do not hesitate to contact Carter Lemon Camerons immigration team. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact our immigration team at immigration@cartercamerons.com or +44 (0)20 7406 1000.
