Recent High Court Judgment
A UK employer who has a Tier 2 Sponsorship License and wants to recruit a skilled worker from outside the European Economic Area on a Tier 2 (General) visa must normally complete a Resident Labour Market Test – unless the job is exempt.
In summary the resident Labour Market Test is not required in the following circumstances:
- if an Applicant is extending a Tier 2 visa in a similar job role for the same employer.
- If an Applicant is switching from a Tier 4 student visa to a Tier 2 visa,
- If the job is on the shortage occupation list.
- If the salary is at least £159,600 per annum.
The requirements for sponsors are set out in Tier 2 Sponsor Guidance for employers and among others include the following:
- Advertising the position for at least 28 days in two locations, and maintaining evidence of the advertisements as prescribed in the guidance
- Keeping a record of the interview notes for all candidates, including copies of CVs, and reasons why any particular candidate was not invited for interview
- Following the interview, keeping notes which record the reasons why a settled worker candidate was not offered a position
In the recent case of R (Khan) v Secretary of State for the Home Department  EWHC 105 (Admin) (“R (Khan) v SSHD”) the High Court upheld the Secretary of State’s decision to refuse the Claimant’s application for a Tier 2 Sponsor Licence and dismissed the application for a Judicial Review. The court held that the Claimant had failed to correctly carry out the Tier 2 Resident Labour Market Test when recruiting a Business Practice Manager.
Exmoor Surgery is a GP practice in West London. After changes in management structure they had to apply for a new Tier 2 Sponsor License. Exmoor Surgery advertised the vacancy for a full time Business Development Manager online. They received a total of 40 applications and 5 were shortlisted for interview. Only two candidates turned up for the interview. Both of them were migrant workers.
Following a visit from UKVI Exmoor’s application for a Tier 2 Sponsor Licence was refused and the practice was removed from the Sponsor Register. Following the initial claim for Judicial Review the Secretary of State agreed to consider a fresh application for a Sponsor Licence. However that fresh application was also refused.
In their decision letter the UKVI stated,
“Our Compliance Officer is not satisfied that you have demonstrated a genuine attempt to recruit from the resident labour market […] we are not satisfied that the role of Business Development Manager is a genuine role within your organisation and that you can offer genuine employment which meets the Tier 2 General criteria”.
KAREN STEYN QC, sitting as a Deputy High Court Judge accepted that management at Exmoor Surgery did not act in bad faith, but found that they failed to fully comply with the residential labour market test:
“the Secretary of State’s conclusion that Exmoor Surgery had not demonstrated a genuine attempt to recruit from the residential labour market was not irrational. That is not because the recruitment exercise was a charade: it is because Exmoor Surgery failed fully to appreciate what was required to comply with the residential labour market test”.
Although the Judge dismissed the Secretary of State’s argument that the job vacancy was not “genuine” and that the level of qualification required for the position had been exaggerated, she ultimately found that the Secretary’s of State decision in relation to the Tier 2 Resident Labour Market Test was not irrational. Therefore the Judge upheld the Secretary of State’s decision to refuse the Claimant a fresh Tier 2 Sponsor Licence and the application for Judicial Review was dismissed.
In paragraphs 44-48 of the judgement the court reinstated the principles of the operation of the Guidance for Tier 2 Sponsor Guidance and mainly that:
The onus is on the sponsor to show that “no suitable settled worker is available for fill the job“.
All candidates who meet the required skills and experience criteria specified in the advertisement for the post must be properly assessed and, if not taken on, they should be provided with full written reasons provided.
The effect of the residential labour test is that if a settled candidate meets the requirements of a post as specified in the advertisement, they should be hired in preference of a candidate without settled status “even if the latter is considered to be the better candidate” .
Preparation is the key to a successful immigration application and specialists in our law firm have relevant knowledge and experience to ensure the Tier 2 Resident Labour Market Test is satisfied.