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What Is a Genuine Vacancy for Tier 2 Category?

Employers should be aware that new genuineness-tests now apply to all Tier 2 visa applications. As of November 2014, the Home Office have introduced subjective tests to all Tier 2 visa categories. This follows the introduction of ‘genuineness tests’ into other categories of the Points Based System, most notably the Tier 1 Entrepreneur route.

This marks a further departure from the purely objective and transparent Points Based System as originally envisaged and a return to the subjective process commonplace under the previous Work Permit system.

The Tier 2 category allows UK employers who are licensed by the Home Office to sponsor migrant workers in the UK, subject to various eligibility and compliance requirements. The Tier 2 category is broken down into two sub-categories: Tier 2 General and Tier 2 Intra-Company transfer. The former allowing for the employment of new-hires including graduates, and the latter allowing for the transfer of overseas staff to the UK branch for a period of work or training.

Only migrants who will be working in skilled (i.e. graduate level) roles are eligible, and they must be paid at, or above the market rate for their particular role. As regards Tier 2 ICT migrants, in most cases they must have been working for the overseas entity for at least 12 months before they can be transferred to the UK. In the case of Tier 2 General migrants, employers must demonstrate that no suitable resident worker could be identified to fill the role, unless otherwise exempt.

Under the new ‘genuineness’ rules, employers will need to demonstrate that in all cases, the role to be filled by the migrant worker is a ‘genuine vacancy’.

In their policy guidance, the Home Office define a genuine vacancy as one which:

a) requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category; and
b) does not include dissimilar and/or lower-skilled duties

If the Home Office have any concerns that a vacancy is not genuine, they may request the employer to provide additional information or evidence. Failure to provide this evidence within the requested time could result in the application being refused.

The guidance goes on to provide examples of vacancies that would not be considered genuine, for instance a job which has been exaggerated to deliberately make it appear to meet the requirements of the Tier 2 category. Another example given is where a job has been tailored to exclude resident workers from being recruited.

The Home Office make clear that this is not an exhaustive list and will query employers wherever a disingenuous vacancy is suspected.

The visa applicant may also be subject to additional scrutiny where it is suspected that a vacancy is not genuine. When considering Tier 2 applications, the Home Office policy requires Entry Clearance Officers or Caseworks to be satisfied that the applicant:

• genuinely intends to undertake the role for which the Certificate of Sponsorship (CoS) was assigned
• is capable of undertaking the role for which the CoS was assigned
• will not undertake employment in the UK other than that permitted by the Entry Clearance, Leave to Enter or Leave to Remain

To assess this on the balance of probabilities, the caseworker may ask the applicant to provide additional evidence or information (usually within 28 days). The applicant may also be asked to attend an interview, where the caseworker will assess the applicant’s:

• knowledge of the role
• relevant experience relative to skills required to do the role
• knowledge of the Sponsor in the UK
• explanation of how they were recruited
• any other relevant information

The Home Office policy guidance states that while this additional level of scrutiny will not be required in most cases, caseworkers should pay special attention to applicants who will be working in high-risk sectors.

High-risk sectors are not defined, but we would imagine that any application involving carers or the hospitality industry should expect greater scrutiny. The applicant’s previous immigration history will also be taken into account when considering the ‘genuineness’ of the application.

Given the variable quality of Home Office decision making, and the Government’s removal of Appeal Rights for almost all immigration applications, these subjective tests put applicants (and their employers) in a precarious situation. While the option for Administrative Review remains available, a fresh application is often the only effective means by which to respond to a caseworker’s decision to refuse on ‘genuineness’ grounds.

While it is relatively early days, it will be interesting to see whether an overly harsh application of the genuineness test will be challenged in the courts by way of Judicial Review.

In the meantime, employers will need to take care to ensure that job descriptions accurately reflect the role and that recruitment exercises used in support of a Tier 2 application are carried out in compliance with Home Office guidelines.

At DavidsonMorris we have the experience to advice you on applications under the Tier 2 category and meeting the ‘Genuineness Test’.

We have an established reputation for effective and efficient management and processing of Tier 2 applications with a team of professionals who will look after your application and processes from start to finish.

If you require assistance contact us on 020 7494 0118 or at info@davidsonmorris.com

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