Whether Amber Rudd’s comments on immigration at the recent Conservative party conference were a genuine attempt at policy formation or simply further anti-immigrant sentiment in the aftermath of the Brexit vote, her comments certainly made the front pages.
Her suggestion of requiring UK businesses to list the number of foreign workers they employ has rightly been roundly condemned. Businesses and a large section of the media have been somewhat taken aback by the audacity of such a proposal. But what made less of a stir were her comments about tightening "the test companies have to take before recruiting from abroad". Otherwise known as the Resident Labour Market Test. The test is notoriously onerous and the Home Office appears to be applying ever closer scrutiny to the way it is performed by employers to ensure there is no abuse of the process.
In a nutshell, before an employer sponsors a non-EEA worker it must first advertise the position to the resident labour force in the UK. (This is subject to certain exemptions for high earners.) The job advertisement must be placed for at least 28 days in certain prescribed media and the employer must retain documents to show that no suitable ‘settled’ candidates came forward. Only then can they then apply for a certificate to sponsor an individual under Tier 2.
The test is laden with pitfalls for both companies and immigration practitioners. The intricate requirements of the Resident Labour Market Test are buried within a lengthy sponsor guidance document. The requirements for retaining documents from the Resident Labour Market Test are contained in a separate guidance document. Employers are often completely unaware of the precise requirements of the Test or do not appreciate the rigour with which the Home Office will scrutinise compliance when it periodically inspects sponsors.
The devil will be in the detail as to what aspects of the Test will be tightened. However, there were no further details in what Amber Rudd told the conference about stricter immigration controls. We are therefore left to speculate on what form that ‘tightening’ might take. The worst case scenario might be extension of the Test to include positions that employers want to fill with EEA workers once we leave the EU. Given the numbers of EEA nationals currently working in the UK, and our reliance on their labour, this would be a hugely time-consuming and expensive process for employers.
However, it is conceivable that the government may seek to tweak the Test to try to identify employers who are potentially abusing the system. It is difficult to predict what aspects might be tinkered with, but it may involve longer advertising periods (making it impossible for employers to sponsor employees who are already working for them on other visas), or removing the range of exemptions.
Ultimately this proposal might go the way of Amber Rudd’s comments on requiring companies to list the numbers of foreign workers and be consigned to the ‘party conference rhetoric’ file. Many employers will be hoping that will be the case
