Ask Emma | Question 2 | Winter 2024/25

We hold an immigration sponsor licence. We are trying to fill a vacancy. Do we need to show that there is no-one available in the UK to undertake a role before we can offer a role to an overseas national? 

The simple answer to this question is no, you do not need to offer a role to the resident population before you can offer it to an overseas national. The resident labour market test, as it was called, was abolished when the immigration system for skilled workers changed in January 2021. At the time, this required that UK employees advertised vacant roles to the resident population and were able to demonstrate that there were no resident workers available to take the role before they could offer a role to an overseas national. 

The resident labour market test is no longer part of the immigration rules for skilled workers. 

However, there is still a requirement for licence holders to be able to explain and, where necessary, to provide evidence of the recruitment process followed, which should be sufficient to satisfy the Home Office that there was a genuine vacancy in place. 

While not as prescriptive as the Resident Labour Market Test, Appendix D still requires the following documents to be retained for migrants sponsored after 1 December 2020.

• Details of any advertisements you placed, including a screenshot, printout or photocopy of the advert, or a record of the text of the advert, and information about where the job was advertised (for example, website address), and for how long;
• A record of the number of people who applied for the job and the number of people shortlisted for interview or for any other stages of the recruitment process; and
• At least one other item of evidence or information which shows the process you used to identify the most suitable candidate, such as a copy of the interview notes for the successful candidate.

If you did not advertise the role, you must be able to explain (and, where practicable, provide evidence of) how you identified the worker was suitable– examples include: 

• the worker was already legally working for you on another immigration route, and you established they were suitable for the role through their previous performance; or
• the worker applied to you outside of a formal advertising campaign (made a ‘speculative’ application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.

You should ensure you are able to evidence your recruitment and selection processes for identifying suitable candidates to the Home Office in the event of an audit.