New immigration system – same genuine vacancy test

The genuine vacancy test has been a feature of our immigration system since 2014. It requires the sponsor to prove there is a real role that they need to recruit into, i.e. they are not just creating a role for a migrant worker. The sponsor must also prove that the vacant role has not been exaggerated to fit the strict immigration eligibility requirements.

Under the current system, a sponsor also must prove (in most cases) that they could not fill the vacancy with anyone from the local labour force (known as the resident labour market test). They do this by advertising the vacancy in 2 specific places using specific wording for a minimum of 28 days. Once this stage has been completed, they must genuinely review all applications and interview everyone who meets the criteria. They can only offer the role to a suitable migrant worker if they can genuinely discount applicants from the local labour market.

To demonstrate compliance with the RLMT, the sponsor must keep records of interviews and notes on why local candidates were rejected. Carrying out the RLMT helps prove that there is a genuine vacancy however, the requirement will not apply to any applications considered after 1 December.

In our view, there will be greater scrutiny of the genuine vacancy test, and sponsors will therefore be expected to retain evidence that a genuine vacancy has arisen. They can do this in many ways, including keeping evidence of the early stages of the decision-making process (i.e. board minutes where a vacancy or vacancies are identified), substantiating the need to recruit i.e. by demonstrating an overstretched team or that someone filling a specific post has left, leaving a vacancy.

They can also keep evidence of recruitment – current sponsors will probably continue to retain similar evidence as they do now (although they will have more flexibility on where to advertise, what to say, etc). They will also need to make sure that any advert does not exaggerate the job description to make it appear that the role fits the eligibility criteria.

Anyone concerned about how they will demonstrate that they have a genuine vacancy under the new system in the absence of the RLMT should get in touch.