UK Immigration Alert: Documents to be Held on File After Sponsorship

The UK Home Office issued a change in guidance yesterday regarding documents that should be kept on file following the sponsorship of a Skilled Worker or a Temporary Worker.

For some Tier 2 (General) applications filed before December 1, 2020, it was necessary to advertise the role for 28 days as part of a resident labour market test (RLMT). When the Skilled Worker category replaced Tier 2 (General) from December 1, 2020, the RLMT was abolished. However, the guidance (known as Appendix D) clarifies that certain documents about the recruitment process of sponsored workers still need to be held on file.

1. Where an RLMT applies

If a company recruited a Tier 2 (General) sponsored worker before December 1, 2020, and an RLMT was required, they must continue to hold on file the relevant documents. Some current routes, including T5 Religious Worker, T5 Creative or Sporting Worker, and T2 Sportsperson, may require an RLMT to be carried out before the application is submitted.

Sponsors should continue to hold on file documents such as: 

  • Screenshots of the advertisements on the first day of placement;
  • CVs of all applicants who were shortlisted for a final interview; and
  • Reasons why each settled worker was unsuitable for the role.

2. Where an RLMT does not apply

The new guidance clarifies that where a formal RLMT has not been required (such as for a Skilled Worker or Intra-Company Transfer application), sponsors should still retain evidence of any recruitment activity they have undertaken. This is to assist the Home Office in assessing whether the sponsored role is a genuine vacancy.

  • If you have advertised. Sponsors are not required to advertise the role where an RLMT is not required. However, if a company has advertised the role they should retain:
    • Copy of the advertisement. Details of any advertisements placed, including a screenshot, printout, photocopy of the advertisement, or a record of the advertisement’s text and the website address. A note should also be made of how long the role was advertised. If the company did advertise, they are not required to place more than one advertisement, but they should retain evidence of all of them.
      Unlike for an RLMT, the guidance does not stipulate where the advertisement should be placed, the required contents of the advertisement, or for how long it should be placed;
    • Number of applicants. A record of the number of people who applied for the job should be kept, as well as the number of people shortlisted for interview or other stages of the recruitment process; and
    • One other item of evidence. At least one other item of evidence or information which shows the process used to identify the most suitable candidate, such as:
      • a copy or summary of the interview notes for the successful candidate;
      • a 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; or
      • any other relevant information or evidence.

        Companies are not required to retain application forms, CVs, interview notes, or any other personal data relating to unsuccessful candidates.

  • If you have not advertised. Where companies have not advertised the role, they must be able to explain and, where possible, provide evidence of how they identified the sponsored worker is suitable for the role. Examples could include identifying the sponsored worker from:
    • Already working for the company in a different immigration category;
    • A speculative application; or
    • University recruitment.
    • The guidance does not mention it, but it must also be sufficient that companies have identified a candidate by, for example, word-of-mouth, reputation, or from a recruitment agency.

Right to Work Grace Period
Following an update in the Home Office employer’s guide to right to work, please also keep in mind the rules on the right to work grace period, which exists for EU (and EEA and Swiss) citizens until June 30, 2021. Annex B of the updated guidance clarifies that until June 30, 2021, employers can still rely on checking an EU citizen recruit’s EU passport or national identity card for right-to-work purposes.

Employers can also check online an EU citizen’s EU Settlement Scheme or other digital immigration status but cannot insist on it. Until July 1, 2021, employers are not required to differentiate between those EU citizens who arrived before or from January 1, 2021. Any EU citizen arriving for the first time from January 1, 2021, will need to apply for permission to work, such as a Skilled Worker.

From July 1, 2021, employers are not required to carry out retrospective right to work checks, and further guidance will be issued for checks from that date.

Erickson Immigration Group will continue to send updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your employer or EIG attorney.