Tier 2 Visa Resident Labour Market Test

Please note that since 1 December 2020 under the new Tier 2 Skilled Worker visa system the Resident Labour Market Test is no longer required.

If you are a UK employer and you have a Tier 2 Sponsor License and want to recruit a skilled worker from outside the European Economic Area on a Tier 2 (General) visa, you will in many cases need to complete the Resident Labour Market Test.  Since 6 October 2019 the number of occupations that come under the Shortage Occupation List has greatly increased from about one percent of UK jobs to about nine percent.

Please note that Tier 5 visa holders cannot switch to the Tier 2 General visa category from within the UK and need to apply for a visa in their home Country.

Some examples where you do not need to do the Resident Labour Market Test are as follows:

• if you are extending a tier 2 visa in a similar job role for the same employer.
• If you are employing someone who has completed a degree or there is three months or less to the completion date, and person is switching from within the Country from a Tier 4 student visa to a Tier 2 visa.
• On a Tier 4 visa and has completed at least twelve months study towards an UK PhD and wishes to switch to a Tier 2 visa from within the UK.
• If the job is on the shortage occupation list.  However, if you wish to employ nurses you will still need to do the Resident Labour Market Test.
• If the salary is at least £159,600 per annum.

The Resident Labour Market Test requires the employer to show to UK Visas and Immigration that no 'settled worker'* is available for the role they wish to fill with a Tier 2 visa worker. To do this employers will usually need to advertise the job in Find a Job a Government owned website and in a private sector job site.

The Employer needs to review the details for each job applicant and decide whether or not the applicant is suitable.  Careful records need to be kept on why applicants, if relevant, were rejected for the position.  Details for each applicant should also be available in case the Home Office decides to check employer records.

*A settled worker is one of the following:

• A UK national

• An EEA national who is exercising their 'treaty right' to free movement (to work in the UK)

• A citizen of a UK Overseas Territory, except citizens of Sovereign Base Areas in Cyprus
   

This guide is split into the following sections:

• Completing a valid Resident Labour Market Test

• Jobs advertised with Find a Job

• Exceptions to advertising with Find a Job

• Methods of advertising a vacancy

• After the Resident Labour Market test

• Exemptions from the Resident Labour Market Test
   

Completing a valid Resident Labour Market Test

To complete a satisfactory Resident Labour Market Test you must, in most cases

• Advertise in the UK in two places which are suitable for the industry and job in question

• Include the following in the advert:

  • The job title

  • Main duties and responsibilities of the job

  • The location

  • Salary package or range

  • Necessary skills, qualifications and experience

  • Closing date for applications. For rolling recruitment programmes the advertisement must show the period the programme will run for.

• Advertise for the required length of time: a total of 28 days in either one or two stages, each of which must be no shorter than 7 days. For example, you could run one advertisement period for 10 days, and later run a second advertisement period for 18 days.
   

Jobs advertised on Find a Job

For most jobs you should advertise on the UK government's Find a Job website – or JobCentre Online in Northern Ireland – and in one other place.

The vast majority of jobs with a salary under £73,900 per year, must be advertised on Find a Job. Please see the Methods of advertising a vacancy section below for more details.
 

Exceptions to the Find a Job Requirement

The following jobs do not have to be advertised on Find a Job or Jobcentre Online, but must still be advertised in a minimum of 2 places. Please see our Methods of advertising a vacancy section below for more details.

• Jobs with an annual salary package over £73,900

• Jobs where there will be 'stock exchange disclosure' requirements

• University recruitment 'milkround' jobs

• Barristers' pupillage places

• PhD level jobs with the following Standard occupation Classification codes:

  • 2111 - Chemical scientists

  • 2112 – Biological scientists and biochemists

  • 2113 - Physical scientists

  • 2114 - Social and humanities scientists

  • 2119 - Natural and social science professionals not elsewhere classified. This includes those employed by research institutions which are not universities

  • 2150 - Research and development managers

  • 2311 - Higher education teaching professionals

• Jobs which are exempt from the need for a Resident Labour Market Test

Although these jobs do not have to be advertised on the Find a Job site, all other Resident Market Labour Test rules apply.

Methods of advertising a job vacancy

All jobs must be advertised in a minimum of 2 places, even if they are exempt from advertising in Find a Job (see above). You may choose to advertise the job on the Find a Job service (replaced the Universal Jobmatch service from 14 May 2018) even if it is exempt, and you can also use any of the following methods:

1. National newspaper (published at least once a week) or professional journal (published at least once a month)

2. A university milkround.

3. Rolling recruitment programmes.

4. Recruitment Agencies and headhunters. In these cases the agency or headhunter must still advertise the job in line with Resident Labour Market Test rules.

5. The internet.

Documents related to the Resident Labour Market test must be kept for each recruitment method used.

1. National newspaper or professional journal

The job may be advertised using the employment section appropriate to the job, of a national newspaper or a professional journal. A national newspaper is one that is available in the majority of newsagents throughout the United Kingdom, or throughout the devolved nation (Scotland, Wales, or Northern Ireland) in which the job is based.

A professional journal is one that is published for a particular field, such as a trade journal or the journal of a professional occupational body, and is available nationally either at a majority of newsagents or through subscription.

• The Scotsman and The Herald are acceptable as suitable national newspapers for vacancies in Scotland and bordering counties of England.

• The Western Mail is acceptable for vacancies in Wales.

• The Belfast Telegraph is acceptable for vacancies in Northern Ireland.

2. University Milkround

An annual recruitment programme, known as a 'milkround' may be used; employers from a wide range of sectors visit universities to give presentations and interview students, usually as part of university career fairs.

• A minimum of three UK universities must be included in the recruitment programme, or all universities which offer the course relevant to the job, if that number is lower.

• The milk round itself must be advertised in 2 places according to the same rules followed for advertising a job, one of which must be a graduate recruitment website which charges no fees for viewing or applying for vacancies.

3. Rolling recruitment programme

Employers can use rolling recruitment programmes to identify suitable candidates for positions that they cannot fill but they must still advertise each job in accordance with the Resident Labour Market Test before offering it to a migrant.

4. Recruitment agencies

If the relevant code of practice permits it, you can use a recruitment agency or headhunter to help you fill the post. The agency or headhunter must still advertise the job in accordance with the Resident Labour Market Test.

5. Internet

The Internet may be used to advertise a job. The website must be one of the following:

• The Find a Job service in the UK, or JobCentre Online in Northern Ireland

• A national newspaper's website

• a professional journal's website

• a prominent or professional recruitment organisation's website

An organisation's own website may be used but only if the organisation is a multi-national or global company, or a large organisation with over 250 permanent employees in the United Kingdom.

Any website used must be free to access and must not charge any fee for viewing or applying for job vacancies.

After the Resident Labour Market Test

• If a settled worker applies for the job and has all the correct qualifications, experience and skills, you cannot employ a migrant over them, even if the migrant is more qualified. The exception is for PhD level jobs with the following Standard occupation Classification codes:

  • 2111 - Chemical scientists

  • 2112 – Biological scientists and biochemists

  • 2113 - Physical scientists

  • 2114 - Social and humanities scientists

  • 2119 - Natural and social science professionals not elsewhere classified. This includes those employed by research institutions which are not universities

  • 2150 - Research and development managers

  • 2311 - Higher education teaching professionals

• If you do offer the job to a worker from outside the European Economic Area, you must issue a Certificate of Sponsorship (CoS) within 6 months of placing the advert. This is to make sure that the results of the advertising reflect the current availability of the skills needed.
  
  Exceptions to the 6 month rule include:

  • If the migrant was recruited through a milkround you have 48 months to assign a CoS, but you must offer the migrant the job within 6 months of the recruitment campaign ending

  • If the job falls under one of the PhD level Standard Occupational Classification codes found above, in which case you have 12 months to assign a CoS

  • If the job is a pupillage position for trainer barristers, in which case you have 12 months to assign a CoS

  • If the job is for a rank and file ('tutti') orchestral musician, in which case you have 12 months to assign a CoS

• The Certificate of Sponsorship you assign must include details of how you completed the Resident Labour Market Test, including:

  • The dates and locations of the job advertisements

  • Relevant reference numbers, such as the Find a Job ID number, or (if advertised in Northern Ireland) the Jobcentre Online vacancy reference number, any reference numbers from online or newspaper advertisements, and so on.

  • Details of any exemption to the Resident Labour Market Test, if used

  • Details of any third party, such as recruitment agency, used.

Further details on completing and assigning a Certificate of Sponsorship can be found on our Tier 2 Certificate of Sponsorship page.

Exemptions to the Resident Labour Market Test

Please note that those who are currently on tier 4 visa student visas, and who have completed their degree including all coursework and have sat all exams do not come under this requirement.  There is no requirement that you have received your degree.

You do not have to complete a Resident Labour Market Test if:

• The job is on the Shortage Occupation List. You can only use this exemption if the migrant will be working for 30 hours a week or more.
  
  If the job comes under Standard Occupational Classification (SOC) code '2231 Nurses' you must still complete a Resident Labour Market Test, even if this SOC code is on the Shortage Occupation List.

• The job is a Tier 2 Intra Company Transfer

• The migrant is already working for you on a tier 2 visa and needs to extend their leave to remain in the UK under the same category, and in the same or similar job.  

• The migrant is already in the UK, or was last granted leave to enter on stay in the UK, in one of the following immigration categories and wants to switch to a Tier 2 (General) Visa:

  • Tier 1 (Post Study Work) visa – this category was closed to new applicants in April 2012

  • Tier 1 (Graduate Entrepreneur) visa

  • the International Graduates Scheme

  • the Fresh Talent Working in Scotland Scheme

  • the Science and Engineering Graduates Scheme.

You also do not need to do the Resident Labour Market Test in the following circumstances:

• The salary for the job will be £159,600 or above

• You are a higher education institution and the worker is returning to a post with you after a period of academic leave

• The job is a supernumerary research position, where the worker has received a non-transferable award or fellowship for scientific research from another organisation. After this award or fellowship has ended you may continue to sponsor the worker to continue their research

• The worker is a doctor or dentist doing speciality training and their salary is being paid by an overseas government as part of an international agreement. You are also exempted if the worker is applying to continue their training after an out-of-programme experience.

• The worker will be supporting a posting to you from a business based abroad in connection with the transfer of a high value business to the UK or a high value inwards investment project. These are the following requirements:

  • You registered with Companies House in the UK no more than 3 years before the date that you assigned the worker a Certificate of Sponsorship

  • You are a branch or wholly owned subsidiary of a business based outside of the UK

  • You or the business based outside of the UK must be directly making the investment and not working in support of a third party making the investment.

  • The transfer or inward investment project involves capital expenditure of at least £27 million, or will create at least 21 new jobs in the UK. This does not need to occur before you assign a Certificate of Sponsorship, but evidence that it will occur as part of the transfer or inward investment project must be provided.

• The migrant currently has, or was last granted, permission to stay in the UK on a Tier 4 student visa, and during their last grant of leave to remain in the UK (or during a continuous period of leave which includes their last grant of leave to remain) which must confirm that they have completed one of the following courses.  It is no longer required that the exam results are known before applying for a tier 2 visa:

  • Bachelor's or Master's Degree (recognised in the UK)

  • UK Postgraduate Certificate in Education

  • Professional Graduate Diploma of Education

  • 12 months of study in the UK towards a UK PhD

In all cases the migrant's sponsor during their studies must have been one of the following:

• An institution receiving funding as a higher education provider from the Department of Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales, or the Scottish Funding Council

• A higher education institution based abroad and sponsoring the migrant to undertake a study abroad program in the UK

• An Embedded College which offers Pathway Courses

Further information, help, and advice

Workpermit.com's team of specialists has 30 years of experience in immigration services, and have helped thousands of people to study and work in the UK. We work with clients under Section 84 of the 1999 immigration act and can deal with all the whole tier 2 visa process including the resident labour market test, tier 2 sponsorship licence application, certificate of sponsorship and the tier 2 visa application.

For more information and advice on UK immigration law and UK visa applications please contact us on 0344 991 9222 or at london@workpermit.com