When hiring a non-European Economic Area national for a permanent role, employers must first demonstrate that they have conducted a search of the resident labour market and have not found anyone successful to take on the role. They must do this by advertising the role, stating the skills, qualifications and experience needed for the position. Qualifications and experience are relatively easy to quantify – for example, degree-level education and above in economics or experience of managing loan transactions worth more than £10 million.

In contrast, it becomes much more difficult to evaluate skills that are intangible, or 'soft skills', raising the question: what are the key soft skills that employers look for? Being a team player is popular, as are skills such as time management, leadership and the ability to work under pressure. These are intrinsically difficult to measure, yet they form an essential part of the recruitment process. This explains why the Home Office policy guidance is prescriptive as to how an ad should be placed (eg, for how long and in which media), but is silent on how soft skills should be assessed by employers. An obvious reason for not defining how soft skills should be assessed is to give employers the freedom to make their own business judgement without excessive government intrusion. However, such latitude goes against the aim of having a fair and objective system.

A more viable suggestion is the impracticability of enforcing a rule where compliance officers second-guess employers' decision-making. While the genuineness test prohibits employers from narrowly tailoring the requirements to a specific candidate, it is not designed to control how employers assess soft skills. Consequently, there appears to be no effective control mechanism in place to prevent determined employers from using advertised soft skills to hire their desired overseas candidate at the expense of suitable settled workers.

Given the lack of effective tools to address the inherent defects in testing the domestic labour market, the Home Office has begun to shift its focus towards removing the financial incentive to employ overseas workers. The rise in minimum salary to £30,000 for most new hires from April 2017, coupled with the introduction of an immigration skills charge of £1,000 (for each year of sponsorship), is expected to reduce the demand for overseas labour. In line with its efforts to reduce reliance on overseas labour, it is also expected that the Home Office will closely scrutinise how positions have been advertised and whether settled workers have been treated fairly in the selection process. If the reason for failing to select a candidate is based mainly on soft skills, it is essential that the employer's records contain a full description of the assessment process. 'Not a good team player' is unlikely to be sufficient. Describing how the individual failed to show that he or she is a good team player will help to illustrate reasoning and may be used to rebut subsequent claims of unfairness in the recruitment process.

For further information on this topic please contact Yuichi Sekine at Magrath LLP by telephone (+44 20 7495 3003) or email ([email protected]). The Magrath LLP website can be accessed at www.magrath.co.uk.