In many cases, employers who wish to hire Tier 2 skilled workers must pass the Resident Labour Market Test. This means that Tier 2 sponsors must offer a position to a settled worker ahead of a migrant where both candidates have the necessary skills and experience.

Discrimination, but the acceptable kind.

A change in management at the Exmoor Surgery NHS practice in west London required it to make a new application for a Tier 2 sponsor licence. Its failure to undertake a compliant Resident Labour Market Test when previously hiring a business development manager, among other allegations of non-compliance, led to the licence being refused.

In dismissing the surgery’s application for judicial review – R (Khan) v Secretary of State for the Home Department [2018] EWHC 105 (Admin) – Karen Steyn QC sitting as a Deputy High Court Judge unpacks the requirements of the test, and reiterates some of the principles of its operation.

No charade

There was no allegation on the part of the Secretary of State that the doctors and managers at the surgery acted in bad faith. As was found in the judgment (paragraph 52):

the Secretary of State’s conclusion that Exmoor Surgery had not demonstrated a genuine attempt to recruit from the residential labour market was not irrational. That is not because the recruitment exercise was a charade: it is because Exmoor Surgery failed fully to appreciate what was required to comply with the residential labour market test.

As set out in everyone’s favourite light summer reading – the Tier 2 sponsor guidance for employers – there are strict requirements to which sponsors must adhere when recruiting for a position which is filled, in the end, by a migrant. These include, but are not limited to

• Advertising the position for at least 28 days in two locations, and maintaining evidence of the advertisements as prescribed in the guidance
• Keeping a record of the interview notes for all candidates, including copies of CVs, and reasons why any particular candidate was not invited for interview
• Following interview, keeping notes which record the reasons why a settled worker candidate was not offered a position

Following the placement of its advertisement, the surgery received 42 applications. The management team took the top five and listed them for interview, discarding the rest.

Only two candidates turned up, one of whom was the existing (part-time) business development manager. Of the two candidates, the existing employee was adjudged to be the best choice for the practice.

According to the Home Office, though, this was not enough.

Our Compliance Officer looked through a selection of other candidates [who] were rejected and it appears that some of these have the qualifications and NHS experience to effectively carry out the role. For example: [Candidate 857] (Immigration Status – ILR) was rejected but meets the requirements as stated on job advertisement. There was no information available as to why this candidate was not considered for the position or why he was rejected.

The court agreed that this finding was not irrational, and was reasonable for the Secretary of State to have made.

Top tips

The following principles emerge from its judgment:

• The onus is very much on the sponsor to show that no suitable settled worker is available to fill the job, and will be judged on the contents of the notes kept from the recruitment process as they appear on inspection (paragraph 45)
• All candidates who meet the skills and experience criteria set out in the advertisement for the post must be properly assessed and, where they are not taken on, full written reasons provided (paragraphs 46-49)
• If a settled candidate meets the requirements of a post as set out in the advertisement, they should be hired over a candidate without settled status “even if the latter is considered to be the better candidate” (paragraph 48)

Other than the findings in respect of the Resident Labour Market Test, the decision of the Secretary of State was found to be wholly irrational. The judge took the claimant’s side on the allegation that the wrong Standard Occupational Classification Code had been applied to the job, with some detailed treatment of the evidence from the Office of National Statistics on SOC codes. She also dismissed the notions that it was not a “genuine” vacancy and that the level of qualification required had been exaggerated.

Whilst cold comfort to the doctors at Exmoor Surgery, these findings – albeit obiter – will be of interest to practitioners and employers alike.