23rd September 2022 | Emma Peacock | Global Mobility, International Presence, Immigration

Under the points-based immigration system, apart from Irish citizens and European citizens with status under the EU settlement scheme, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points. Partner Emma Peacock explains the system in this guide.

This system provides flexible arrangements for UK employers to recruit skilled workers from around the world through a number of different immigration routes.

The UK’s previous immigration scheme required a resident labour market test be carried out on businesses recruiting and sponsoring skilled workers. Whilst the resident labour market test has been abolished, the Skilled Worker and Home Office guidance now details the evidence of recruitment requirements that HR staff and recruiters are expected to follow when sponsoring employees on skilled worker visas.

Skilled Worker Visa – requirements

For a Skilled Worker Visa there must be:

  • a certificate of sponsorship for the applicant from an employer (Home Office approved);
  • a sufficiently skilled job;
  • a job meeting the minimum salary requirement —depending on the type of work; and
  • the applicant must satisfy the English language requirement.

A potential hire, meeting the above requirements, independently financial and able to cover the costs of sponsorship is unlikely to encounter barriers to recruitment and is likely to be able to find a role.

Businesses, however, still encounter challenges.

Removal of the Resident Labour Market Test

Businesses wanting to sponsor a skilled worker (under the previous Tier 2 (General) visa) previously had to carry out a resident labour market test (RLMT).  The test was prescriptive and added at least 28 days to the recruitment process. Businesses were required to ensure any vacancy advertised could not be carried out by a UK citizen/settled worker and added to the overall cost  of the hire. If a UK citizen or settled worker had the skills and requirements listed in the job advert, the business could not offer it to the individual requiring sponsorship — even if the stronger candidate.

Whilst the abolition of the resident labour market test, which occurred on 1 January 2021, was great news for businesses – employees can now be brought on board without the long initial delay adding value sooner, there are still administrative and operational challenges which employers need to watch out for (particularly with costs for recruiting from within EU (rather than relying on the free movement of workers)) and particularly in the field of discrimination. It is always useful to have a recap on this.

Potential risks

With the points-based system in place and the removal of the resident labour market test, applicants must not be rejected on the basis of their immigration status.

Stating that only those with the right to work in the UK will be recruited and/or offered employment may lead to race discrimination claims on the grounds of nationality. To avoid this, we would recommend the following steps to avoid potential race discrimination claims:

 Planning and Strategy

  • What level of recruitment as a business is being aimed for this year and where are these vacancies within your business – understand where your vacancies could be mapped on the immigration points-based system:
  • Is the skilled occupation list an option – does the role you require fall into this list?
  • Does the salary offered match the going rate for the role?

Carrying out this exercise will help you prepare and manage your recruitment process. If the role or salary requirements do not meet the immigration points required, then that would be the basis of any rejection — rather than the individual’s immigration status.

Internal Processes and Training

  • Make sure everyone is aware that the resident labour market test no longer applies and that applicants should not be rejected based on their immigration status.
  • Do not state in any job vacancy or advertisement that you do not have a sponsorship licence.
  • Consider applying for a sponsor licence if you are likely to be recruiting a skilled worker — it is currently taking around 8 weeks for the licence to be processed.  This prevents a delay later.
  • Don’t introduce a recruitment policy confirming you only accept applications subject to immigration status and/or from those who do not require sponsorship.
  • Avoid decisions being made based on costs only (further details below).

What if you do not want to be a sponsor?

In a nutshell, if you operate in any way that could place any nationality at a disadvantage, for example, not wanting to incur the costs of sponsoring a worker, or not wanting a sponsor licence, you will have to justify that decision by:

  • being clear on what your legitimate aim is — i.e. what is your real business need; and
  • ensuring that how you achieve that aim is proportionate — i.e. it is reasonably necessary in order to achieve that aim?

Is the cost of sponsorship the only reason for not offering a role to a potential candidate? If so, then you are not going to be able to successfully defend a race discrimination claim. Rather than saying that “it’s too expensive to sponsor a worker”  explore other considerations – to do that you need to know what they are.

For example, it may be that in relation to the administrative, compliance and/or general obligations that go with sponsorship, you just don’t have the resources or expertise to manage that confidently.

The courts recognise and understand that most business decisions have regard to costs, so something cost-driven but not solely cost-based is capable of justification. If not purely cost-based, you do have to be clear on grounds you rely on for not offering the role and be able to demonstrate that your cost-driven approach is proportionate. 

Do you have a genuine vacancy? 

Though there is no longer a requirement to carry out a resident labour market test, you must still have a genuine vacancy – any role advertised must be genuine, meet the relevant skills threshold and salary requirement.   

The best starting point to determine whether an applicant meets the required skills threshold is to consider the vacant role on the Government’s skilled occupation list. The role must not be fake, a sham or created so that an applicant can apply for a visa.

If a vacancy is not capable of being plotted under a relevant job code on the skilled occupation list, there may be a temptation to try and “fit” it under a different job code on the list. If you can genuinely consider, and demonstrate, that the role matches the relevant job code on the list, that should be fine. However, any attempt to make an application for a role that does not fulfil the relevant skill threshold, then you will likely encounter problems with your skilled worker visa/sponsorship application such as:

  • the application being rejected;
  • the application being accepted in error but later investigated, subject to a compliance visit and/or the application being rejected at a later date;
  • the Home Office could consider your application misleading, which could result in:
    • a fine
    • a downgrading of the sponsor licence
    • being on under more scrutiny  i.e. on the Home Office radar re all future applications.

You will need to ensure that you understand the requirements of the vacant role and how that may or may not correspond with the relevant job code on the skilled occupation list. 

Summary

The removal of the resident labour market test gives considerations that need to be factored into the business recruitment and decision-making process, posing real issues for the business which cannot be ignored.

We have seen many changes recently in the world of business immigration law and no doubt will continue to do so, therefore it is essential to ensure you and/or your recruitment team are up to date on the new visas, the points-based system and are clear how to avoid potential discriminatory practices.

If you find you and/or your team isn’t quite as up to speed as you thought, then equality and diversity training and/or training around the visa points-based system may be helpful and we will always be happy to assist.

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