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Education briefing - The new immigration system: a change to the duties of sponsors on record keeping

  • United Kingdom
  • Education - Briefings

25-03-2021

 

Changes to the guidance for Skilled Worker sponsors published on 16 March impact the way in which recruitment records should be retained.

The Immigration Rules introduced on 1 December 2020 ended the resident labour market test in respect of Skilled Workers. It was previously necessary to establish that a prescriptive advertising process had been followed, proving no resident workers were available for the job (or for certain roles – such as HE teaching professionals – that the applicant requiring sponsorship was the best candidate), before issuing a Tier 2 General Certificate of Sponsorship.

It was hoped that the removal of the resident labour market test would result in a far less burdensome record keeping requirement, given that from 1 December 2020, the only requirement in this respect was that the role was a genuine one. UK Visas and Immigration (UKVI) subsequently amended the guidance about record keeping, contained in Appendix D of the Skilled Worker Sponsor Guidance, later in December. This version suggested, however, that evidence of very specific advertising in respect of such a role was still necessary. This caused widespread confusion given that the resident labour market test had ended.

Appendix D has now been updated again with further clarification of what is needed to demonstrate that the role was a genuine vacancy.

Where the role is advertised, institutions must retain all of the following:

• details of any advertisements placed (note there is no longer a specified minimum number of adverts that must be placed, or a prescribed method of advertising), 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 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 other stages of the recruitment process

• at least one other item of evidence or information which shows the process the institution used to identify the most suitable candidate – eg copy or summary of the interview notes for the successful candidate; a list of interview questions; brief notes on why the successful candidate was selected and why other candidates were rejected; or information about any scoring or grading process used to identify the successful candidate

Where the role is not advertised, the institution must be able to explain how it identified the worker as suitable such as:

• through a university milk round

• the worker was already legally working for the institution on another immigration route and it established they were suitable for the role through their previous performance

• the worker applied outside of a formal advertising campaign and the institution was satisfied they had the necessary skills and experience to do the job

The full Appendix can be found here: Sponsor guidance appendix D: keeping records for sponsorship - GOV.UK (www.gov.uk)

This clarification of the requirements is welcome, but it remains to be seen how UKVI will assess whether suitable documentation has been retained in practice. UKVI suspended immigration compliance visits prior to the implementation of the new immigration system and these visits are to recommence shortly. The interpretation applied by its officers of what a “genuine” vacancy is will be important where institutions have sponsored staff from December 2020 onwards.