Certain rules around sponsoring individuals were relaxed when the new immigration system came into force on 1 December 2020. Previously, in many cases the employer had to advertise the vacancy in a very specific way to the resident population and employers could only sponsor a non-EEA national if no suitable British, European national or settled worker had applied for the role.
This requirement was known as the Resident Labour Market Test. Under the new system, Tier 2 (General) has been replaced by the Skilled Worker route. Before sponsoring someone as a Skilled Worker, there is no longer a requirement to carry out the Resident Labour Market Test and it is no longer necessary to demonstrate that there were no other applicants who were suitable for the role. Employers are instead free to choose the best applicant for the role. However, it has been unclear what the Home Office expects from sponsors in relation to the recruitment process and the associated record keeping obligations. This has largely been clarified in new guidance published on 16 March 2021. We look at what this means for sponsors.
What evidence do I need to keep in relation to the recruitment process?
Employers must still keep evidence of how an individual sponsored as a Skilled Worker was identified to fill the role. In particular, you must retain evidence of any recruitment activity you have undertaken.
What evidence do I have to retain if the position was advertised?
If the role has been advertised, you must retain copies of the adverts, details of where the adverts were placed and how long the position was advertised for.
In addition, you will need to retain a record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process.
Finally, you must ensure you keep on file at least one other item of evidence or information which shows the process you used to identify the most suitable candidate. Examples include but are not limited to:
- A copy or summary of the interview notes for the successful candidate;
- A list of common interview questions used for all candidates as part of the selection process;
- Brief notes on why the successful candidate was selected and why other candidates were rejected;
- Information about any scoring or grading process you used to identify the successful candidate; and/or
- Any other relevant information or evidence
The new guidance also clarifies that, in relation to Skilled Workers, employers no longer have to keep application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates. This is positive news for employers in the context of data protection considerations.
What happens if the role was not advertised?
If you did not advertise the role, you must be able to explain how you recruited the worker. This information is used by the Home Office when establishing whether the role is a genuine vacancy.
In particular, the guidance states that, if you did not advertise the role, you must be able to explain (and, where practicable, provide evidence of) how you identified the worker was suitable for the role. Examples include, but are not limited to, the following:
- You identified the worker through a university milk round - in which case you should retain evidence of the milk round as set out in the guidance;
- The worker was already legally working for you under another immigration category and you established they were suitable for the role through their previous performance; or
- The worker applied to you outside of a formal advertising campaign (e.g. made a 'speculative' application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.
Do I have to keep any other information about the role or the applicant?
There are wide ranging record keeping requirements and these include but are not limited to keeping a copy of the job description and evidence that the person has all of the skills, qualifications and experience set out in the job description and advert. This means ensuring that you retain copies of qualifications, references and evidence of registration with professional bodies.
What about Tier 2 (General) applications submitted before 1 December 2021?
Employers should be aware that, for individuals who are sponsored under Tier 2 (General) and where the Resident Labour Market Test was required, evidence of that process must still be retained. This includes keeping copies of the adverts, which must meet all the prescribed requirements, together with details of all applicants for the role and why they were unsuitable for the role and copies of interview notes for all short-listed candidates. Failure to retain evidence to show that the Resident Labour Market Test was undertaken correctly could result in the sponsor licence being suspended, revoked or downgraded following a Home Office visit.
If the person is sponsored under Tier 2 (General) but the Resident Labour Market Test was not required (e.g. because the person is a high earner or is filling a role on the shortage occupation list) the guidance indicates that you still need to retain evidence of the recruitment activity, in the same way as you must do so for Skilled Workers. We therefore recommend that sponsors check whether this information is available and, if so, that they ensure that this is readily accessible should the Home Office visit.
The updated guidance is welcome news for sponsors. However, it remains to be seen in practice how the Home Office will treat the different forms of evidence of recruitment when considering the genuineness of the recruitment process or of the role.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.