The recent Judicial Review application of R (Khan) v Secretary of State for the Home Department  EWHC 105 (Admin) (“R (Khan) v SSHD”) was dismissed after the judge upheld the Secretary of State’s decision to refuse the Claimant’s application for a Tier 2 Sponsor Licence on the basis that the Claimant had essentially failed to correctly carry out the Tier 2 Resident Labour Market Test when recruiting a Business Practice Manager. It is the responsibility of the Tier 2 Sponsor to correctly carry out the Tier 2 Resident Labour Market Test.
Tier 2 Resident Labour Market Test Case Study: Background to R (Khan) v SSHD
The Claimant, a GP practice in West London, was granted a Tier 2 Sponsor Licence on 22 January 2015. From October to November 2015 the Claimant advertised online for a full time Business Development Manager, as per one of the requirements of the Tier 2 Resident Labour Market Test. The practice received a total of 40 application and 5 were then shortlisted for an interview. 3 of the 5 shortlisted candidates failed to turn up for the interview and as a result only 2 were interviewed. Both of these candidates were migrant workers.
On 23 March 2016 the Claimant applied for a fresh Tier 2 Sponsor Licence and surrendered their existing one as UK Visas and Immigration (“UKVI”) advised the Claimant that the change in control of the partnership of the practice meant this had to be done. Following a visit from UKVI on 11 April 2016 however, the Claimant’s fresh Tier 2 Sponsor Licence application was refused on 13 May 2016 and they were withdrawn from the Sponsor Register on 17 May 2016. The Claimant issued a claim for Judicial Review and as a result on 31 October 2016 a consent order was made, by which the Secretary of State agreed she would consider a fresh application. The Claimant then made a new Tier 2 Sponsor Licence application. Following another visit from UKVI on 28 November 2016, the Secretary of State then refused the Claimant’s fresh Tier 2 Sponsor Licence application.
What is the Tier 2 Resident Labour Market Test?
As part of the Tier 2 Sponsor Licence Guidance, employers must correctly carry out the Tier 2 Resident Labour Market Test. This means that the Tier 2 Sponsor must advertise the job position for at least 28 days in two different locations and offer the position to a settled worker ahead of a migrant worker when both candidates have the required experience and skills for the role. All candidates who have the necessary experience and skills set out in the job advertisement must be properly assessed and full written reasons must be provided whenever a candidate is deemed not to be suitable. It is the responsibility of the Tier 2 employer to ensure that the Resident Labour Market Test is carried out properly. The decision letter dated 13 December 2016 in the case of R (Khan) stated,
“Our Compliance Officer is not satisfied that you have demonstrated a genuine attempt to recruit from the resident labour market […] we are not satisfied that the role of Business Development Manager is a genuine role within your organisation and that you can offer genuine employment which meets the Tier 2 General criteria”.
The Secretary of State also took the view that the level of qualification required for the vacancy was exaggerated. The Claimant submitted that the Secretary of State’s decision was weak, in particular in the conclusion that the Claimant had not demonstrated a genuine attempt to recruit from the Resident Labour Market Test was ‘irrational’.
Tier 2 Resident Labour Market Test Case Study: Judgement to R (Khan) v SSHD
Whilst the Judge concluded that the Secretary of State’s notions that the job vacancy was not genuine and that the level of qualification required for the position had been exaggerated, ultimately, the Judge found that in regard to the application of the Tier 2 Resident Labour Market Test, the Secretary of State’s decision was justified and not irrational. Therefore the Judge upheld the Secretary of State’s decision to refuse the Claimant a fresh Tier 2 Sponsor Licence and the application for Judicial Review was dismissed.
The full judgement can be found here: R (Khan) v Secretary of State for the Home Department  EWHC 105 (Admin) | LEXVISA Immigration Solicitors London
Using Legal Representation to satisfy the Tier 2 Resident Labour Market Test
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives ensure you correctly satisfy the Tier 2 Resident Labour Market Test. Our solicitors and Barristers will help you comply with the Home Office’s requirements and meet the Immigration Rules. Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure successfully apply for a Tier 2 Sponsor Licence, our solicitors and barristers will ensure all specified documents must be provided. The UK Immigration Rules are complex and a legal representative can help ensure that your Tier 2 Sponsor Licence application meets the Immigration Rules.
Successfully satisfy the Tier 2 Resident Labour Market Test
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