Tier 2 Sponsors are bound by various sponsorship duties, and one of the most important ones is offering a genuine vacancy for a job role. A failure to provide a genuine vacancy can lead to the downgrading, suspension or revocation of an employer’s sponsor licence. For the migrant applicant, this could mean a refusal of their Tier 2 visa.
The Tier 2 Guidance to migrant workers, and the Tier 2 Guidance to sponsors both define genuine vacancy as one which:
- requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the Tier 2 (General) category for the duration of the vacancy shown on the assigned certificate of sponsorship (CoS)
- does not include dissimilar and/or lower-skilled duties and must not have been tailored to exclude suitable qualified or skilled settled workers
In order to assess this, the Home Office can require the sponsor and/or the applicant to provide further information to establish this requirement. These requests for information from the Home Office normally have strict deadlines, which are usually 10 working days.
There can be a number of ways in which the Home Office may conclude the role to be a non-genuine vacancy. These include:
- an exaggerated job description which deliberately makes it appear that the job meets the requirements under the Tier 2 category
- A job or role that does not exist, but has been created in order for the migrant to come or remain in the UK
- Overly restrictive or specific advertisements which demonstrate that they have been tailored to exclude settled workers
In a recent case before the Court of Appeal of R (Suny) v SSHD [2019] EWCA Civ 1019, the Home Office had refused a migrant’s application on the basis that the job role was not a genuine vacancy. Part of the reasoning behind the refusal was that the migrant worker did not have any experience and the job description was very similar to the one that appears in Appendix J of the Immigration Rules.
The Court found that the Home Office’s decision was irrational. In its reasoning, the Court noted that whilst there may be instances where the facts are so stark that the inference of non-genuine vacancy could be validly raised, in this instance those were not present. The Court held that it was reasonable for the migrant worker not to have previous experience as this is what the ‘new entrant’ category in the Immigration Rules anticipated. Further, without having more evidence of non-genuineness, the businesses’ use of similar wording from Appendix J was understandable, especially when the applications were made without the benefit of legal advice.
Whilst in the case of Suny, the Court sided with the employer, this was because of the unusual facts of this case. In most other related case, the Courts have confirmed that the Home Office has a wide discretion in respect of Sponsor licences and have usually upheld a decision to revoke a sponsor licence.
Sponsors should ensure that they take accurately record the job role being offered on the Certificate of Sponsorship. Whilst most employers feel obliged to copy parts of the Appendix J description, there is no requirement to do so. The job role on offer must however broadly match the SOC Code description. Sponsors should not exaggerate the job description to fit the requirements, but instead provide details of the job to be performed.
The Resident Labour Market test should also be properly conducted, so that it avoids being overly selective of a candidate, but instead offers a genuine chance to potential suitable settled workers.