- The resident labour market test is there to protect the settled workforce and means that you must advertise the job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if:
- you have completed a resident labour market test in accordance with this guidance and can show that no suitable settled worker is available to fill the job or
- the job is exempt from the resident labour market test
- A suitable settled worker means any settled worker who has the skills and experience you are seeking. If you find that you have more than one candidate with all the necessary skills and experience you advertised for, where one is a settled worker and the other is a migrant, you must appoint the settled worker even if the migrant is more skilled or experienced. The only exception is if the job falls within one of the PhD level standard occupation classification (SOC) codes listed in Table 1 of Appendix J of the Immigration Rules; when you can appoint a migrant if they are the most suitable candidate
Exemptions from the resident labour market test
Continuing to work in the same occupation
If the migrant is already working for you and they need to extend their leave in the same immigration category to continue working for you in the same occupation, you do not need to carry out a resident labour market test. If they are changing (‘switching’) immigration categories and are not covered by another exemption, you must advertise the post.
Shortage occupations are ones where there are not enough settled workers to fill available jobs in particular sectors. The shortage occupation list in Appendix K of the Immigration Rules on GOV.UK is reviewed regularly. The document includes a separate list of shortage occupations for Scotland. If you are filling a vacancy which is listed only on the shortage occupation list for Scotland, the vacancy must be in Scotland.
You do not have to carry out a resident labour market test before assigning a Tier 2 (General) certificate of sponsorship (CoS) to fill a job in a shortage occupation in Appendix K of the Immigration Rules. The exception is if the job is in the occupation code ‘2231 Nurses’, where you must carry out a resident labour market test. You can only assign a CoS for a job on the shortage occupation list if the migrant will work for a minimum of 30 hours per week.
Please note that if you are assigning an unrestricted CoS for a nurse, you should select the “Have you met the resident labour market test?” option, and give details in the box below. If you select the shortage occupation option, you will be unable to complete this box, which may lead to the nurse’s application being delayed or refused.”
The criteria for employing a migrant in a shortage occupation may include additional criteria that the sponsor must meet.
If you wish to employ someone under the digital technology shortage occupation provisions, you must apply to pre-register, see the Tier 2 (General): sponsors of shortage occupation – digital technology workers section.
You do not have to carry out a resident labour market test if a migrant you want to sponsor is already in the UK and is applying to switch into Tier 2 (General) leave and has, or was last granted leave to enter, or to stay in the UK under one of the following:
- Tier 1 (Post-Study Work)
- Tier 1 (Graduate Entrepreneur)
- the International Graduates Scheme
- the Fresh Talent Working in Scotland Scheme
- the Science and Engineering Graduates Scheme
- where they have, or were last granted permission to stay in the UK as a Tier 4 migrant or as a student and during their last grant of leave, or a continuous period of leave, that includes their last grant of leave, they have received final results confirming they have either:
- passed and will be (or have been) awarded a UK recognised bachelor’s or master’s degree or
- passed and will be (or have been) awarded a UK Postgraduate Certificate in Education or
- passed and will be (or have been) awarded a Professional Graduate Diploma of Education or
- finished a minimum of 12 months study in the UK towards a UK PhD Note: from 12 November 2015, only migrants whose last sponsor was either:
- a UK recognised body or a body in receipt of public funding as a higher education institution from the Department of Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales or the Scottish Funding Council
- an overseas higher education institution to undertake a shortterm study abroad programme in the United Kingdom
- an Embedded College offering Pathway Courses
will be able to change (‘switch’) into Tier 2 (General) leave from within the UK.
You do not have to carry out a test where the total salary package for the job will be £159,600 or above. This also applies if a high earner’s salary is cut to an amount below the high earner threshold that applied on the date their original CoS was assigned – they must make a new application for Tier 2 leave, or worker authorisation (Croatian nationals only) but you do not have to carry out a resident labour market test.
You do not have to carry out a resident labour market test if you are a Higher Education Institution and were previously sponsoring a migrant who is returning to resume their post following a period of academic leave. The migrant must have previously been granted entry clearance or leave to remain as a Tier 2 (General) migrant and the break in their employment must have been solely due to a period of academic leave. This does not override the rules on cooling off periods which will still apply if the migrant is still applying to return to the UK.
Supernumerary research positions
You do not have to carry out a resident labour market test where the job is in a supernumerary research position, over and above your normal staffing requirements. This is where:
- the migrant has been issued a scientific research Award or Fellowship by an external organisation
- that award is not transferrable and the role wouldn’t be filled by anyone else if the migrant withdrew from the project
- the Award or Fellowship has ended but you are continuing to sponsor the migrant so that they can continue to undertake this research
Postgraduate doctors and dentists in speciality training
You do not need to carry out a resident labour market test if the migrant:
- will be sponsored as a doctor in speciality training where their salary and the costs of their training are being met by the government of another country under an agreement with the UK government
- has already started speciality training as a doctor or dentist in the UK and they are applying to continue that training or return to that training (with the same National Training Number) after an out-of-programme experience
You must confirm on the certificate of sponsorship (CoS) that this exception to the resident labour market test applies.
If a speciality training doctor or dentist wishes to undertake an out-ofprogramme experience in the UK, then the organisation providing this will need to become the new sponsor. You, as the current sponsor (usually the Deanery) must tell us that you no longer have sponsorship responsibilities for the migrant because they are taking an out-of-programme experience. If you are the sponsor that is offering the out of programme experience, you must have carried out the resident labour market test before you assign a CoS.
When the out-of-programme experience in the UK has finished, the migrant may need to return to their speciality training. You must assign a new CoS but will not need to carry out a resident labour market test if the migrant is returning to the same training programme. You must confirm on the CoS that an exception to the resident labour market test applies. If you were the sponsor for the migrant when they did their out-of-programme experience you must tell us that you are no longer sponsoring the migrant.
When a postgraduate doctor or dentist is accepted for speciality training they are given a National Training Number (NTN). You must produce this when asked for, as evidence that the doctor or dentist was undertaking training before the out-of-programme experience.
High value inward investment posts
You do not need to carry out a resident labour market test where the job offer is for the migrant to work in support of a posting from an overseas firm to you in connection with the relocation of a high value business to the UK or a significant new inward investment project, where:
- you were registered in the UK with Companies House no earlier than 3 years before the date the CoS was assigned
- you are the registered branch or wholly owned subsidiary of a business which has its headquarters and principal place of business outside the UK
- the relocation or inward investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs
and you are able to provide evidence of this, if required. You or the overseas business of which you are the branch or subsidiary must be the entity directly making the investment – for this purpose, working in support of an inward investment project does not include the supply of services to a third party client who is making an investment. The capital expenditure or job creation does not need to have taken place before you assign the CoS, but you must be able to provide evidence that this will take place as part of the existing project.