The Resident Labour Market Test (RLMT) is the process by which an employer must advertise a role prior to sponsoring a non-EEA worker, in order to demonstrate that there are no suitable settled workers who are able to carry out the role.
The aim of the RLMT is to protect the settled workforce by requiring employers to advertise jobs in order to give settled workers the opportunity to apply. The specific requirements of the RLMT are set out in the Tier 2 and 5 Guidance for Sponsors (Sponsor Guidance) and we take a look at when the RLMT is required, and the exemptions to this here.
How to carry out a RLMT
Whilst there are a number of different methods of carrying out an RLMT, the simplest method, and the one most frequently used, is for job adverts to be placed online. When carrying out a RLMT using this method, two adverts must be placed, each for a minimum of 28 calendar days.
Unless an exception applies, 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.
Information such as the job title and a full job description must be included within the advert. The closing date for applications must also be clearly visible to applicants and this must be at least 28 days after the posting date. A full list of the information which needs to be included within the job advert can be found within the Sponsor Guidance.
Screenshots
Once a RLMT is active, the sponsor is required to take screenshots of the adverts on the hosting website, as they would appear to applicants. The screenshots must be taken on the day that the advert is first advertised and must show:
- the name/logo of the website;
- the contents of the advert;
- the date;
- the website URL; and
- the closing date for applications.
Assessing applicants
Whilst ensuring that the job adverts are placed correctly and that accurate screenshots of these are taken is a vital part of carrying out the RLMT, just as important, and often overlooked, is the need to correctly assess any applications for the role.
Any applications that are received for the role should be assessed against the criteria advertised for. If an applicant meets the required skills, experience and qualifications set out within the job advert, then they should be invited for interview.
Any applicant who is a settled worker and meets all of the advertised requirements would need to be employed over a worker requiring sponsorship, even if the worker requiring sponsorship is more suitable and a preferable candidate for the role overall. The only exception to this would be if the role falls within one of the PhD level SOC codes listed in Table 1 of Appendix J of the Immigration Rules, in which case the most suitable candidate can be hired even if they require sponsorship.
As evidence to demonstrate that candidates have been assessed for the role, employers are required to keep the following:
- all applications short-listed for final interview, in the medium they were received, for example, emails, CV’s, application forms;
- the names and total number of applicants short listed for final interview; and
- for each settled worker who was rejected or did not take up the offer of employment, interview notes or other documentation which shows the reasons why they have not been employed.
Failure to comply with the specific requirements of the RLMT
As employers are not generally required to submit evidence of having carried out a RLMT as part of an individual’s application for leave, UKVI will not always pick up on a RLMT that has been carried out incorrectly.
However, UKVI can request to see evidence of the RLMT at any point during the sponsorship process and it is almost guaranteed that evidence of the RLMT will be requested in the event of a compliance visit and it is therefore vital to ensure that where required, this is carried out correctly.
If during a UKVI visit, it is found that a RLMT was not carried out correctly or suitable records have not been kept, the sponsor licence could be suspended or revoked.
Challenging a decision to suspend or revoke the sponsor licence
Where a fully compliant RLMT has not been carried out, and the Home Office has revoked a sponsor licence on this basis, a sponsor will have the option to embark upon a Judicial Review.
Unfortunately, in such cases, the Courts do tend to decide in favour of the Home Office. This can be seen in the following case, R (Khan) v Secretary of State for the Home Department.
As an overview, this case involved Exmoor Surgery that, upon advertising a role, received 42 applications. The management team decided to only interview the top five candidates, discarding the rest. Of the five candidates, only two turned up for interview. One of the two candidates was an existing employee and it was decided that they were the best choice for the role.
The Court in this case determined that:
“The recruitment exercise undertaken…undoubtedly met many of the requirements for the proper conduct of a residential labour market test. For example, it is not disputed that the post was suitably advertised, on appropriate websites and for the proper period of time, in accordance with the Guidance. Nor is it suggested that the process of drawing up a short-list of five applicants, or the interview process for the two applicants on the short-list who attended the interviews, was a sham.”
However, whilst the Court concluded that many aspects of the RLMT had been complied with, it ultimately decided that “Exmoor Surgery failed fully to appreciate what was required to comply with the residential labour market test” and as such, the decision to revoke the Surgery’s sponsor licence was upheld.
Similar judgements have been made in a variety of other cases which increasingly demonstrate that even a minor record keeping error or incorrect date can have extreme consequences for a sponsoring organisation.
How we can help
We are experienced in helping organisations meet their sponsor duties and we also offer compliance reviews. If you are looking to sponsor an individual and have questions regarding the RLMT or have concerns regarding a failure in compliance our team would be pleased to assist and can be contacted here.
