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Tier 2 Sponsorship Licence: Labour Market Test

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The so-called Labour Market Test is the initial step in the world of a Tier 2 sponsorship licence for companies seeking to hire overseas employees. The test was originally designed by the Home Office to ensure and provide settled workers with the opportunity to apply for employment positions. The mind-set behind it is that employment opportunities which arise in the UK should, in the first instance, be made available to suitable settled workers. It is, then, crucial that employers consider all applications received against requirements for a specified position.

The scheme requires the employer to evidence to the Home Office that no “settled worker” is deemed available for the role they intend to fill with a Tier 2 visa worker. Settled workers includes:

  1. UK nationals;
  2. EEA nationals exercising EU Treaty Rights in the UK;
  3. Citizens of British Overseas Territories (See Tier 2 and 5: guidance for sponsors for exclusions);
  4. Commonwealth citizens allowed to enter or remain in the UK under UK ancestry rules on the basis that a grandparent was born in the UK;
  5. Those who have settled status within the meaning of the Immigration Act 1971

In order to demonstrate that, employers will usually be required to advertise the job in the governmental recruitment platform, “Find a Job”, in addition to a private sector recruitment agency. The job advertisement must have full details of the position including, but not limited to:

  1. Job Title;
  2. Job Description, with the role’s duties and responsibilities;
  3. Salary and any allowances;
  4. Skill and qualifications required for the employment;
  5. Location of employment;
  6. Closing date of application

Vacancies are subject to a minimum 28-day advertising period. Once the advertisement is made live, the employer must review the details of applicant and decide whether or not the candidate is suitable for the position.  At that stage, careful records must be kept on the screening of each candidate, including the reason why the person would not be suitable for the role.  Details for each applicant should also be available in case the Home Office decides to check employer records.

If employers have two applicants equally qualified for the position, the settled worker must be offered the position. The RLMT goes as far as to ensure that where a non-settled worker is considered to be more suitable for the position, the settled worker who only meets the minimum suitability requirements for the position must be given preference. Where employers fail to comply with the RLMT, a Tier 2 (General) visa will be refused and there may be consequences for the employer’s sponsor licence.

If no suitable settled worker is found available for the employment, the employer will then be allowed to offer the position to an overseas candidate. It is important and imperative that the overseas candidate considered by the employer meets the skills and qualifications set-out in the job advertisement, otherwise the Tier 2 application is likely to be refused.

In some situations, employers might be exempt from conducting the labour market test. Examples where the test becomes not necessary:

  1. Post Study Work, when a candidate is switching from a Tier 1 (Graduate Entrepreneur) visa, a Tier 1 (Post Study Work) visa, a Tier 4 (General) student visa or a Tier 4 Doctorate Extension scheme visa;
  2. Shortage Occupation – the position is listed appears on the Shortage Occupation located in Table 1 and 2 of Appendix K of the the Immigration Rules under a specified Standard Occupational Classification (SOC) Code;
  3. Continuing to work in the same occupation for the same Sponsor;
  4. High Salary – the applicant’s gross annual salary is £159,600 or above;
  5. Research Position – the position is a supernumerary research position.

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