If you think your vacancy could attract overseas applicants who you may wish to employ, you need to consider immigration issues right from the outset of the recruitment process.

Frequently, we consult with new business clients who have ran a recruitment process and identified an overseas candidate. They seek legal advice at the point they have realised they will need a visa. 

They are aware that they can only recruit an overseas candidate where they have been unable to find a suitably qualified or skilled “settled worker”. What they are not aware of, however, is that this recruitment process has to be carried out in accordance with a specific process.

In UK immigration law, this process is called the “Resident Labour Market Test” (RLMT).  

There are very technical and prescriptive rules around the RLMT, if these have not been met then the recruitment process has to be re-run. 

In every single case where new business clients have consulted with us after they have ran a recruitment process, that process has turned out not to meet the exact requirements of the RLMT.  This has meant that the business has had to re-run the whole recruitment process.  As the advertisement requires to be re-run for 28 days this causes considerable delay which could have been avoided.

It makes sense therefore to make sure that any advertisements are RLMT compliant from the outset. 

At what stage in the recruitment process should you ask candidates if they have a right to work in the UK?

We recommend that on the application forms employers remind candidates that they will require to have the right to work in the UK in order to take up the position. 

We would also advise against requesting evidence of an applicant’s right to work at the application stage, as this could carry the risk of a legal challenge on the grounds of discrimination. 

You may also wish to consider after the short-listing stage advising those who you invite for interview of the RLMT, and the fact that this means that non EEA candidates will not be appointed if a suitable qualified settled worker applies.  

Please also note that where you do obtain a visa for a non EU national where a RLMT test was required there are strict rules regarding the records you must keep to evidence this process. 

For further information on how to run a compliant RLMT and on record keeping, contact Jacqueline Moore or Blair Melville on 0131 473 5451 to arrange a business immigration consultation.