Resident Labour Market Test and Exemptions
The specific requirements of the Resident Labour Market Test (‘RLMT’) are set out in the Tier 2 and 5 Guidance for Sponsors (‘Sponsor Guidance’). The aim of the RLMT is to protect the settled workforce by requiring employers to advertise jobs in the UK in order to allow settled workers to apply. The requirements of a RLMT are stringent and if even one of the requirements is over looked the Home Office can refuse to accept that a RLMT has been carried out in accordance with its requirements.
When to carry out a Resident Labour Market Test (RLMT)
An employer wishing to sponsor a non-EEA national under any of the following categories must ensure they have advertised the role in accordance with the Sponsor Guidance before issuing a certificate of sponsorship:
- Tier 2 (General);
- Tier 2 (Minister of Religion) or Tier 5 (Religious Workers);
- Tier 5 (Creative and Sporting).
However, the Sponsor Guidance sets out a number of exemptions which, if applicable, would mean that an employer does not have to carry out a RLMT before assigning a certificate of sponsorship to a non-EEA national.
For example, an employer wishing to sponsor a non-EEA national under the Tier 2 (General) route of the Points Based System would not have to carry out a RLMT in the following circumstances.
Continuing in the same occupation with the same employer
If the non-EEA national is already working for the company and they wish to extend their leave in the same immigration category in order to continue working in the same occupation.
Shortage of occupation
An employer will not be required to carry out the RLMT where they wish to sponsor a non-EEA national in a role that appears on the Shortage of Occupation List (with the exception of Nurses under SOC code 2231). The Shortage of Occupation List is set out in Appendix K of the Immigration Rules which can be found here and is reviewed regularly by the Migration Advisory Committee (‘MAC’). Roles will be added to the list when evidence has been presented to the MAC which suggests there are not enough settled workers in the UK to fill the jobs available.
Post study work
A RLMT will not be required where the non-EEA national is already in the UK and is applying to switch into Tier 2 (General) from one of the following immigration categories:
- Tier 1 (Post-Study Work);
- Tier 1 (Graduate Entrepreneur); or
- where an individual was last granted leave under Tier 4 or as a student and during that leave they had completed a UK bachelor’s degree, a Postgraduate degree or a minimum of 12 months study in the UK towards a PhD.
If an employer plans on providing a total salary package of £159,600 or above a RLMT will not be required as the non-EEA national would be classed as a ‘high earner’.
Complete information regarding the exemptions that apply to the RLMT can be found in the Sponsor Guidance and we would recommend that an employer reviews this guidance before assigning a certificate of sponsorship.
How to carry out a RLMT
In order to comply with the requirements of the RLMT the position being recruited for must be advertised in two places for at least 28 calendar days.
The simplest option is for adverts to be placed online. One advert must generally be placed on the Find a Job website whilst the other advert can be placed on a suitable website of the employer’s choosing, providing applicants are not charged to view the advert or apply for the role. We would recommend that an employer uses a website that is normally used by the industry or sector.
What to include in the advert
All online adverts must include the following information:
- job title;
- main duties and responsibilities of the job (job description);
- salary or salary range on offer;
- skills, qualifications and experience needed; and
- closing date for applications.
As each advert must be active for a minimum of 28 calendar days, it is important that closing dates reflect this. We recommend that enough time is factored in either side of the advert to deal with any issues, for example delays in the advert going live on the website or requests for further information such as a written assurance statement from Find a Job.
Finally, evidence that the RLMT has been carried out should be retained as this may need to be produced to UKVI.
As the Home Office frequently change the Sponsor Guidance, sponsors should ensure that they keep up to date with the current rules at all time.
Resident Labour Market Test and Exemptions: How we can help
Our immigration experts are able to provide advice and guidance in relation to a sponsor’s duties and can provide detailed advice regarding the RLMT.
If your organisation requires legal assistance in this area or would just like to discuss your situation with a member of our team on a no-obligation basis, please contact us.