To advertise or not advertise a role? What does the Home Office expect?

Find out what has changed in light of updated immigration guidance for employers, published by the Home Office.

On 16 March 2021, the Home Office published updated guidance on what documents must be retained by employers sponsoring migrants under various categories of the points based system. The updated guidance will be well received by sponsors as it now deals with the relaxation of the rules regarding evidencing a recruitment activity for a role. 

The guidance has helpfully been spilt into sections to deal with situations where you have advertised the role and not.

Advertising done

In the event that employers do advertise role, the guidance provides flexibility on where the adverts are to be placed, what information needs to be contained in the screenshot or the duration of the advert.  Employers will need to prepare and retain robust notes of their recruitment process and how the most suitable candidate was identified for the role, as outlined below:

If you advertised the role, you must retain all of the following:

Details of any advertisements you placed (see Note below), including:

  • a screenshot, printout or photocopy of the advert, or a record of the text of the advert; and
  • information about where the job was advertised (for example, website address), and for how long

Note: there is no specified minimum number of adverts you must place, or prescribed method of advertising. Where you have placed more than one advert, we recommend you retain evidence of all adverts placed.

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.

At least one other item of evidence or information which shows the process you used to identify the most suitable candidate (see Note below) – 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 your 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

Note: you do not have to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates.

No advertising done

Where no formal Resident Labour Market Test (or similar) is required, employers still need to retain evidence of any recruitment activity that was undertaken. In addition, they will need to explain how the individual was identified as having the skills for the role and provide evidence, where available. This will help the Home Office assess if the role is a genuine vacancy. Evidence may be in the form of:

  • University milk round documents;
  • The individual having the skills based on their previous performance with the company;
  • A speculative job application being made, together with evidence that the company was satisfied the individual had the skills and experience to undertake the job.

Whilst it’s pleasing that no prescriptive lists of documents have been provided by the Home Office, we would still encourage sponsors to retain documentary evidence such as interview notes, reference letters and/or shortlisting matrix as this will back up any decisions made in relation to new hires.

Key considerations

  • Employers should remember that the examples provided in the guidance are not exhaustive and therefore other contemporaneous evidence could be accepted by the Home Office.
  • If employers are unsure about their recruitment practice, it’s best practice to advertise the role if only for a short period of time, such as seven calendar days. This way there will be a clear paper trail of the recruitment process.
  • Extra information can be requested at any time by the Home Office – for example, as part of a sponsor licence application, compliance visit or CoS request.
  • Employers should be aware of their responsibilities under the Data Protection Act 2018 and the UK General Data Protection Regulation.
  • A key theme for the Home Office is genuineness of a role and therefore, employers should ensure that they are comfortable with their processes for recruitment.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of March 19, 2021.