On 16 March 2021 the Home Office made important clarifications to the documentation that sponsors of workers must keep regarding their recruitment activity. The changes are helpful and should not be onerous for sponsors to comply with, however there may be actions that some employers will need to take to ensure compliance.

Text:

The changes are set out in Appendix D to the sponsor guidance, which covers document keeping requirements for sponsors.

Background to the update

Substantial reforms to the immigration arrangements for sponsored workers were brought into effect on 1 December 2020, including the launch of the Skilled Worker route. This route, unlike its predecessor Tier 2 (General), does not include a formal resident labour market testing requirement.

An initial update to Appendix D, which was published on 1 December 2020, stated that sponsors only needed to retain evidence of recruitment activity where the sponsor had told the Home Office that resident labour market testing had been carried out.

This initial wording did not adequately reflect the Home Office’s intention to ensure it was still able to assess whether a vacancy occupied by a sponsored worker was a genuine vacancy, even where formal resident labour market testing was not required. The Home Office therefore revised Appendix D on 18 December 2020, however, in doing so, reintroduced some very prescriptive document keeping requirements that were similar to what had previously been in place for formal resident labour market testing.

Subsequent conversations and correspondence between the Home Office and immigration practitioners confirmed that it was not the Home Office’s intention to reimplement formal resident labour market testing requirements in all but name, and that clarifying guidance would be forthcoming. This was eventually published on 16 March 2021.

Requirements in the new guidance

Part 2 of Appendix D, which covers the evidence that sponsors must keep of recruitment activity has now been split into two sections.

Section A covers the situation where a formal resident labour market test or similar was, or is, required (ie where it was required under the pre-1 December 2020 routes, plus T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting). It broadly replicates Appendix D as it was before 1 December 2020.

Section B covers the situation where no formal resident labour market testing is required (ie for Skilled Worker and all other sponsored workers from 1 December 2020 aside from T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting).

Section B confirms that if the job was advertised, evidence of recruitment activity must be retained, including:

• Details of adverts, ie:

• Screenshot, printout or photocopy of any adverts placed (with no minimum number of adverts or prescribed method of advertising, however retaining evidence of all relevant adverts is recommended)

• Information on where the job was advertised, eg 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 other stages of the recruitment process

• At least one item of evidence or information which shows the process the sponsor used to identify the most suitable candidate (noting that there is no need to retain any personal data for unsuccessful candidates):

• Copy or summary of interview notes for the successful candidate

• List of common interview questions used for all candidates as part of the selection process

• Brief notes on why the successful candidate was selected and why other candidates were rejected

• Information about any scoring or grading process used to identify the successful candidate

• Any other relevant information or evidence

If the job was not advertised, the sponsor must, if asked, be able to explain (and if practicable provide evidence of) how the sponsored worker was identified as being suitable. Non-exhaustive examples given include:

• Milk-round evidence (ie letters from each university as per pre-Skilled Worker requirements)

• The worker was already working legally for the sponsor in another immigration route and their previous performance demonstrated they were suitable

• The worker submitted a speculative application and the sponsor was satisfied (eg through interview, references and/or qualifications) that they had the necessary skills and experience for the job

We would suggest that a short note is included on the sponsored worker’s HR file to provide the relevant explanation as appropriate.

Practical steps to take now

Sponsors should ensure that the updated guidance is complied with, including that it is met for all workers whose immigration applications were made on or after 1 December 2020. The guidance appears to be retrospective, so our view is that sponsors do not have to meet the more onerous requirements that were set out in the 18 December 2020 guidance.

Sponsors should be aware however that the definition of ‘worker’ used in the guidance includes workers under the Intra-company routes, so should be prepared to justify the suitability of intra-company transferees whose applications were made on or after 1 December 2020.

If you have any queries on the updated guidance changes and how to comply, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Stephen OFlaherty, Naomi Hanrahan-Soar, Joanna Hunt,