On 16 March 2021 the Home Office clarified the documentation that sponsors of workers must keep regarding their recruitment activity. The changes are helpful and should not be onerous for sponsors to comply with; however, there may be actions that some employers will need to take to ensure compliance.
The changes are set out in Appendix D to the sponsor guidance, which covers document-keeping requirements for sponsors.
On 1 December 2020 substantial reforms to the immigration arrangements for sponsored workers were brought into effect, including the launch of the skilled worker route. Unlike its predecessor Tier 2 (General), the skilled worker route includes no formal resident labour market testing requirement.
On 1 December 2020 an initial update to Appendix D was published, which stated that sponsors needed to retain evidence of recruitment activity only where they had told the Home Office that resident labour market testing had been carried out.
This initial wording inadequately reflected the Home Office's intention to ensure that it was still able to assess whether a vacancy occupied by a sponsored worker was a genuine vacancy, even where formal resident labour market testing was not required. Therefore, on 18 December 2020 the Home Office revised Appendix D; however, in doing so, the Home Office reintroduced some prescriptive document-keeping requirements that were similar to what had previously been in place for formal resident labour market testing.
Subsequent conversations and correspondence between the Home Office and immigration practitioners confirmed that it was not the Home Office's intention to reimplement formal resident labour market testing requirements in all but name, and that clarifying guidance would be forthcoming. This was eventually published on 16 March 2021.
Part 2 of Appendix D, which covers the evidence that sponsors must keep of recruitment activity, has been split into two sections.
Section A covers the situation where a formal resident labour market test or similar was, or is, required (ie, where it was required under the pre-1 December 2020 routes, plus T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting). It broadly replicates Appendix D as it was before 1 December 2020.
Section B covers the situation where no formal resident labour market testing is required (ie, for skilled workers and all other sponsored workers from 1 December 2020 aside from T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting).
Section B confirms that if the job was advertised, evidence of recruitment activity must be retained, including:
- details of ads – namely:
- a screenshot, printout or photocopy of any ads placed (with no minimum number of ads or prescribed method of advertising; however, retaining evidence of all relevant ads is recommended); and
- information on where the job was advertised (eg, the website address) 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 other stages of the recruitment process; and
- at least one item of evidence or piece of information which shows the process that the sponsor used to identify the most suitable candidate (personal data for unsuccessful candidates need not be retained), including:
- 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; and
- any other relevant information or evidence.
If the job was not advertised, the sponsor must, if asked, be able to explain (and, if practicable, provide evidence of) how the sponsored worker was identified as being suitable. For example, the sponsored worker was identified as being suitable:
- through so-called 'milk-round' evidence (ie, letters from each university as per pre-skilled worker requirements);
- because they were already working legally for the sponsor in another immigration route and their previous performance demonstrated that they were suitable; and
- because they submitted a speculative application and the sponsor was satisfied (eg, through interview, references or qualifications) that they had the necessary skills and experience for the job.
Employers are advised to include a short note on sponsored workers' HR files to provide the relevant explanation as appropriate.
Sponsors should ensure that they comply with the updated guidance, including meeting its requirements for all workers whose immigration applications were made on or after 1 December 2020. The guidance appears to be retrospective, so sponsors arguably need not meet the more onerous requirements that were set out in the 18 December 2020 guidance.
However, sponsors should be aware that the definition of 'worker' used in the guidance includes workers under the intra-company routes, so should be prepared to justify the suitability of intra-company transferees whose applications were made on or after 1 December 2020.