Are you doing the Resident Labour Market test correctly?

The recent High Court decision in R (Khan) v Secretary of State for the Home Department [2018] EWHC 105 (Admin) case illustrates the pitfalls of an inadequate RLMT.

In October 2012, an Indian national (whom we shall call “Ms P”) started working as a receptionist in a GP practice. Ms P was in the UK studying for her Master’s degree and was able to work part time under the conditions of her visa. She was promoted to deputy manager in January 2013, but left in February 2014 to take a Business Development Manager role at another company.

On 15 October 2015, the GP practice she had formerly worked for advertised online for a full time Business Development Manager. The job was advertised on Universal Job Match from 15 October until 14 November, and on NHS Jobs from 15 October until 24 November. Ms P submitted an application for the job. There were 40 applicants for the role, of which 5 were shortlisted for interview. Of the 5 shortlisted candidates, 3 failed to attend the interview at all.

Ms P and another candidate were interviewed, had to give a 15 minute presentation and were scored by the interviewers. Ms P was deemed to be the better candidate, performing better on the presentation and impressing the interviewers with her knowledge of bespoke computer software used by the practice, acquired during her previous experience as the practice deputy manager.

Ms P was offered the role, which she accepted. The GP practice had been granted a sponsor licence a year earlier, and Ms P was granted a Tier 2 Visa valid until 15 March 2019.

Shortly after, the practice changed their management structure and the number of partners increased from 2 to 3. On 4 March 2016, UKVI informed the practice that because of this change, they would have to apply for a new sponsor licence and surrender the existing licence. However, their application was refused on 13 May 2016 and the practice was removed from the Sponsor Register.

The refusal was challenged by way of Judicial Review, which resulted in UKVI agreeing to reconsider a fresh application, during which time Ms P’s position in the UK was temporarily protected. The fresh application was made and another inspection was conducted on 28 November 2016. The conclusion was a second refusal decision, which again had to be challenged by way of Judicial Review.

One of the most interesting issues raised in the case was whether the practice had carried out the Resident Labour market to the required standard. It was not disputed that the post was suitably advertised, nor was it suggested that the process of drawing up a short-list of five applicants, or the interview process for the two applicants who attended, was a sham.

UKVI argued that the practice had failed to comply with Part 28 of “Tiers 2 and 5: guidance for sponsors”:

28. The resident labour market test is there to protect the settled workforce and means that you must advertise the job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if either: 

  • You have completed a resident labour market test in accordance with this guidance and can show that no suitable settled worker is available to fill the job
  • The job is exempt from the resident labour market test

28.1 A suitable settled worker means any settled worker who has the skills and experience you are seeking. If you find that you have more than one candidate with all the necessary skills and experience you advertised for, where one is a settled worker and the other is a migrant, you must appoint the settled worker even if the migrant is more skilled or experienced. The only exception is if the job falls within one of the PhD level standard occupation classification (SOC) codes listed in Table 1 of Appendix J of the Immigration Rules; when you can appoint a migrant if they are the most suitable candidate. 

The practice argued that they had filtered the 40 applicants according to the “essential” criteria listed in the job description, and short listed the best candidates. Ms P was deemed to be the best candidate and was therefore selected.

The Secretary of State argued that this approach was flawed and the onus was on the sponsor licence holder to show that amongst many apparently reasonably well-qualified applicants for the post, there was no settled worker that could fill the role.

The Court agreed, noting that there is an obvious difference between selecting the five best candidates and determining who, out of the 40 applicants, appeared to have (subject to interview) the requisite skills and experience needed for the post. The effect of the Resident Labour Market Test is that a settled worker who is suitable for an advertised post should be recruited in preference to a non-settled worker, even if the latter is considered to be the better candidate.

It is worth noting that UKVI can refuse an application if they deem the skills and experience requested exceed what is actually necessary to actually do the job. Employers should take care to keep detailed records from the recruitment process and to properly assess all candidates who meet the skills and experience criteria set out in the advertisement. If it is decided not to take a settled worker, full written reasons should be recorded to justify the decision.