24th November 2009

Four week advertising requirement from 14 December 2009

From 14th December 2009 the period of external advertising to be undertaken by UK based employers prior to sponsoring a migrant worker under Tier 2 of the Points Based System will increase from two weeks to four weeks.

Under Tier 2 Policy Guidance employers are required to establish that they have made a genuine attempt to recruit from within the Resident Labour Market (including the UK and the European Economic Area) prior to offering a role to a foreign national and issuing a Certificate of Sponsorship. Currently the advertising period is two weeks in an approved medium (as detailed in the relevant Code of Practice) as well as Job Centre Plus.

In August 2009 the Migration Advisory Committee (MAC) recommended to Government that the advertising period be extended to four weeks in all cases. It is likely that the other 15 MAC recommendations will be implemented in February or April 2010. However, in his speech on immigration on 12 November 2009 the Prime Minister indicated a wish to implement the recommendation in respect of RLMT in autumn 2009. Consequently, the date of 14 December 2009 has been fixed for commencement of this new requirement.

Under the current provisions, all vacancies must be advertised for two weeks, except when they attract a salary of over £40,000.00 per annum. However in their report MAC concluded that more senior positions take longer to fill. They recommended that the required duration of vacancy advertising be increased to four weeks for all jobs, both on Job Centre Plus and in another acceptable forum, even those with a salary in excess of £40,000.00 per annum. The only exception to the Job Centre Plus requirement is for positions at Director level attracting a salary in excess of £130,000.00. These roles will continue to be exempt from Job Centre Plus advertising under the new policy.

Key points:

The new requirement will only apply to advertising campaigns that start on or after 14 December 2009. Businesses that have already run advertisements or have begun a recruitment campaign will not need to do so again to meet the new requirement.

Whilst UKBA will require all jobs to be advertised for four weeks before a migrant can be appointed, there will not be a requirement for the four weeks to be continuous. Businesses will be able to advertise skilled jobs for two weeks initially. If a suitable resident worker applies, the business can appoint them straightaway. However if no suitable resident workers apply, the resident labour market must be tested for a further two weeks before they can appoint a migrant worker.

It is essential that employers be aware of the extended advertising period, as this will impact on the timeframes for recruitment and sponsorship of foreign nationals. An amended Tier 2 Policy Guidance will be published on 14 December to confirm the new requirements.