Category Archives: foreign workers

Key Requirements of the Resident Labour Market Test

Companies that employ immigrant workers need to be aware of the resident labour market test.  Before bringing in a worker from a foreign country on a Tier 2 visa it is important to complete this test unless the job you are recruiting for is on the list of shortage occupations.  You will need to show that there is no suitable settled worker in the UK that can do the required job.  All vacancies must be advertised to settled workers for 28 calendar days by either:

a) advertising the vacancy for a single continuous period with a minimum closing date of 28 calendar days from the date the advert first appeared or,

b) advertise the vacancy in two stages where each stage lasts no less than seven calendar days and both stages add up to 28 calendar days.

The job must be advertised in the UK so make settled workers aware of the vacancy and this must be in accordance with a code of practice specific to the sector and job.  If there is no code of practice for then the job must be advertised using Jobcentre Plus.

If the salary for the job is £40,000 or under then it must be advertised for a minimum period of two weeks.  If the salary for the job is over £40,000 then it must be advertised for a minimum period of one week.  The job must be advertised at an appropriate market rate of pay (see the relevant codes of practice).

The advert must include:

  • the job title
  • the job description
  • location
  • salary package
  • skills and qualifications
  • closing date for applications

If, after following the above procedure, no suitable applicant can be found then the job may be offered to a suitably qualified national of a country outside the European Economic Area and Switzerland, provided that the employer has obtained a  Sponsorship Licence.  A Certificat of Sponsorhsip must be issued within six months of placing the advert. This is to make sure that the results of the advertising reflect the current availability of the skills needed. The only exception is where an organisation recruits a migrant using a milkround, when a Certificate of Sponsorship must be assigned within 12 months of the milkround.

The Certificate of Sponsorship should specify the annual equivalent salary for the job if the migrant will be working in the United Kingdom for less than 12 months. For example, earnings of £10,000 on a six month contract would mean an annual salary of £20,000.

The methods that can be used to advertise a job are set out in the relevant codes of practice.The following is a list of methods that might be used:

  1. National newspaper or professional journal
  2. Annual recruitment programme
  3. Recruitment Agency
  4. Internet
  5. Head-hunter

On the sponsor management system under Tier 2 (general) you must confirm that you have completed a resident labour market test being unable to fill the post with a settled worker or the test is not required for the job.

 

Employing Foreign Nationals – How to Stay Legal

employing foreigners, employing foreign nationals, migrant workers, foreign workers

Later this year the UK will accept Bulgarian and Rumanian immigrants to live and work here.  This follows a two year restriction on doing so that was implemented in November 2011 in order to protect the UK economy and all time jobs low but follows various EU treaties that allow the unrestricted movement of people within the EU states.

With this latest possible influx of EU migrants it is important that employers check the status of their employees to ensure that they have the right to work in the UK. Its difficult to know without checking given that there are many nationalities who have come to the UK to find work. A recent Panorama programme showed the UK Border Agency raiding a South London company who were illegally employing foreign nationals.  It’s not just the migrants who were in trouble, employers who fail to make robust checks on their employees can face huge fines with civil and criminal penalties.

There are key documents that employees need to provide to their employer that show their immigration status eg passport, visa.  An employer should ask for these documents as part of the recruitment process before taking on the employee and keep a photocopy on file which will help them if they are audited; details of the documents that can provide proof of immigration status can be found on the UK Border Agency website.  Provided you can show you have correctly checked the documentation it provides a statutory defence against a penalty.  It’s not just about checking whether the workers have the right to work in the UK, it’s about ensuring that they are not working too many hours or undertaking a type of work that they should not be doing; students for example can only work a certain number of hours per week.  Also some migrants may have time limits on their right to stay in the UK, that is why it is important to undertake regular checks at least once every 12 months. 

The legislation that governs the employment of foreign nationals is the Immigration Asylum & Nationality Act 2006 that came into force on 29 February 2008 and applies to staff who are employed from that date.  Guidance on managing migrants employed 27 January 1997 to 28 February 2008 is governed by the Asylum & Immigration Act 1996.

The UK Border Agency provides lots of useful guidance here:  http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary