The resident labour market test protects the settled workforce in that it requires the employer to first offer the relevant job to settled workers by advertising it in the UK. You can only recruit a migrant or issue a CoS if:
♠ you have complied with a resident labour market test, and can show that no suitable settled worker in the UK is available to fill the job, or
♠ the job is exempt from the resident labour market test.
A suitable settled worker means a settled worker who has the skills and experience required for the job. If you find that you have more than one applicant with all the necessary skills and experience you require, you must offer the job to the applicant who is settled in the UK. This condition applies irrespective of whether there is a more skilled or experienced migrant worker that you prefer to hire.
Exceptions to settled worker preference condition
The only exception to this condition of giving the settler worker a preference is if the job falls within one of the PhD SOC codes, when you can appoint a migrant if they are the most suitable candidate. The PhD level SOC codes are as follows:
♠ 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 (for Tier 2 this includes researchers in research organisations other than universities)
♠ 2150 – Research and development managers
♠ 2311 – Higher education teaching professionals.
Exemptions from the resident labour market test
You do not have to conduct a resident labour market test before you can assign a CoS under Tier 2 (General) if one of the following exemptions apply:
♠ Intra Company Transfer Applicants
The residence labour market test is not required if the applicant is applying for entry clearance or leave to remain under Tier 2 Intra Company Transfer category (joining or continuing to work for the same company).
♠ Continuing to work in the same occupation
If the migrant is already working for you and they need to extend their leave to continue working for you in the same occupation, you do not need to conduct a resident labour market test.
♠ National Shortage occupations
Shortage occupations are ones where there are not enough settled workers to fill available jobs in particular sectors. There is a separate list of shortage occupations for Scotland. If you are filling a vacancy which is listed only on the shortage occupation list for Scotland, the vacancy must be in Scotland.
You do not have to conduct a resident labour market test before assigning a Tier 2 (General) CoS to fill a job in a shortage occupation. You can only assign a CoS for a job on the shortage occupation list if the migrant will work for a minimum of 30 hours per week.
♠ Post-study work
The resident labour market test is not required if the migrant applicant has, or was last granted leave to enter, or to remain in the UK under one of the following categories:
♠ Tier 1 (Post-study work)
♠ Tier 1 (Graduate Entrepreneur)
♠ the International Graduates Scheme
♠ the Fresh Talent Working in Scotland Scheme
♠ the Science and Engineering Graduates Scheme; or where they have, or were last granted permission to stay in the UK as:
♠ a Tier 4 migrant or as a Student and during their last grant of leave, or a continuous period of leave, have received final results confirming they: have passed and will be (or have been) awarded a UK recognised bachelor’s or master’s degree, or have passed and will be (or have been) awarded a UK Postgraduate Certificate in Education, or have passed and will be (or have been) awarded a Professional Graduate Diploma of Education, or have finished a minimum of 12 months study in the UK towards a UK PhD.
♠ High earners
You are exempted from the resident labour market test where the total salary for the job will be at least £153,500. This also applies if a high earner’s salary is cut to an amount below the high earner threshold that applied on the date their original CoS was assigned – they must make a new application for Tier 2 leave, or worker authorisation (Croatian nationals only) but you do not have to conduct a resident labour market test.
♠ Academic leave
A resident labour market test is not required if you are a Higher Education Institution and were previously sponsoring a migrant who is returning to resume their post following a period of academic leave. The migrant must have previously been granted entry clearance or leave to remain as a Tier 2 (General) migrant and the break in their employment must have been solely due to a period of academic leave.
This does not override the cooling-off period restrictions which will still apply if the migrant is still applying to return to the UK.
♠ Supernumerary research positions
You do not have to conduct a resident labour market test where the job is in a supernumerary research position, over and above your normal staffing requirements. This is where:
♠ the migrant has been issued a scientific research Award or Fellowship by an external organisation
♠ that award is not transferrable and the role wouldn’t be filled by anyone else if the migrant withdrew from the project, or
♠the Award or Fellowship has ended but you are continuing to sponsor the migrant so that they can continue to undertake this research.
♠ Postgraduate doctors and dentists in speciality training
You do not need to conduct a resident labour market test if the migrant:
♠Will be sponsored as a doctor in speciality training where their salary and the costs of their training are being met by the government of another country under an agreement with the UK government;
♠ Has already started speciality training as a doctor or dentist in the UK and they are applying to continue that training or return to that training (with the same National Training Number) after an out-of-programme experience. You must confirm on the CoS that this exception to the resident labour market test applies.
If a speciality training doctor or dentist wishes to undertake an out-of programme experience in the UK, then the organisation providing this will need to become the new sponsor. You, as the current sponsor (usually the Deanery) must tell us that you no longer have sponsorship responsibilities for the migrant because they are taking an out-of-programme experience. (If you are the sponsor that is offering the out of programme experience, you must have conducted the resident labour market test before you assign a CoS).
When the out-of-programme experience in the UK has finished, the migrant may need to return to their specialty training. You must assign a new CoS but won’t need to conduct a resident labour market test, if the migrant is returning to the same training programme. You must confirm on the CoS that an exception to the resident labour market test applies. If you were the sponsor for the migrant when they did their out-of-programme experience you must tell us that you are no longer sponsoring the migrant.
When a postgraduate doctor or dentist is accepted for specialty training they are given a National Training Number (NTN). You must produce this when asked for, as evidence that the doctor or dentist was undertaking training before the out-of-programme experience.