UNITED KINGDOM: New Guidance on Documents Employers Must Retain for Sponsored Workers

March 18, 2021

The UK Home Office has released a guidance update on the evidence of recruitment activity for Sponsored Workers.

The Home Office has confirmed that an employer must be able to show how they have recruited their sponsored workers. This is including where there is no formal resident labour market test but the employer must still be able to explain (and, where appropriate, provide evidence of) how they recruited the worker – this is to help the Home Office assess whether the vacancy is genuine.

The guidance splits the evidentiary requirement into two sections. Section A focuses on the evidence an employer must keep if they were required to carry out a resident labour market test, or take other steps to protect the settled workforce and Section B tells the employer the evidence they must keep, or information they must provide, where there was no formal resident labour market test requirement.

Section A reflects the previous evidentiary requirements concerning screenshots of adverts posted and details of those who applied and why they were not employed.

Section B confirms that if a resident labour market test is not required the sponsor must still retain evidence of any recruitment activity they have undertaken. Including if they did not advertise the role, they must be able to explain how they recruited the worker in order to establish that the role is a genuine vacancy.

This requirement applies to all Worker (including Tier 2) and Temporary Worker (including Tier 5) routes where there is no formal resident labour market test requirement, or where the specific role is exempt from that requirement.

Therefore, where adverts were placed (even if not required), details of any adverts placed should be kept (usually via screenshot). Further the sponsor should retain a record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process and at least one other item of evidence or information which shows the process used to identify the most suitable candidate examples include but are not limited to:

  • 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 you used to identify the successful candidate
  • any other relevant information or evidence

However, the guidance confirms that sponsors do not have to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates.

Sponsors who do not advertise the role must, if asked, be able to explain (and, where practicable, provide evidence of) how they identified the worker was suitable– examples include, but are not limited to, the following:

  • you identified the worker through a university milk round – you should retain evidence of the milk round as described in Section A, paragraph (h) above
  • the worker was already legally working for you on another immigration route and you established they were suitable for the role through their previous performance
  • the worker applied to you outside of a formal advertising campaign (made a ‘speculative’ application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job

Employers are encouraged to review the new guidance here.

The guidance has also been updated to confirm that sponsors must be aware of their responsibilities under the Data Protection Act 2018 and the UK General Data Protection Regulation when retaining documents under the sponsor requirements. The Guide to the UK General Data Protection Regulation page on the Information Commissioner’s Office website has detailed information on this, including guidance on the immigration exemption. https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/immigration-exemption/

Our Advice

Individuals and organizations who may be affected are encouraged to contact a Newland Chase immigration specialist for case-specific advice.

For general advice and information on immigration and business travel to the UK, please contact us.