The Genuine Vacancy Test for Tier 2 General and Tier 2 ICT migrants

On 6th November 2014, the Home Office published new Immigration Rules which have introduced a number of changes to the business immigration categories. One of the most important changes for employers to be aware of is that the Home Office now has power to conduct checks to ensure that advertised vacancies are "genuine". This change affects applications under both the Tier 2 General and Tier 2 Intra-Company Transfer categories.

Applying the Genuine Vacancy Test, Entry Clearance Officers and in-country caseworkers are now able to refuse Tier 2 General and Tier 2 ICT applications where there are reasonable grounds to believe that:

• the job as recorded by the Certificate of Sponsorship Checking Service is not a genuine vacancy;
• the applicant is not appropriately qualified or registered to do the job in question (or will not be, by the time they begin the job); or
• the stated requirements of the job as recorded by the Certificate of Sponsorship Checking Service and in any advertisements for the job are inappropriate for the job on offer and/or have been tailored to exclude resident workers from being recruited.

When applying for entry clearance or leave to remain therefore, applicants for Tier 2 General and Tier 2 ICT visas must provide evidence to prove that they are being sponsored to undertake a genuine vacancy and are capable of undertaking the role for which their Certificate of Sponsorship was assigned. The requirements of the job must be reasonable and not have been tailored to exclude resident workers from being recruited.

In assessing whether a genuine vacancy exists, the Home Office will consider 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 as to how the migrant was recruited; and
• any other relevant information.

In making this assessment the Home Office may request additional information and evidence, or request that the applicant attend an interview.

Earlier this year, the Home Office also introduced a 'genuine employment' test for sponsors when they apply for a Sponsor License or request a Restricted Certificate of Sponsorship (RCOS). The Home Office has clarified that sponsors must 'not assign a COS where there is no genuine vacancy or role'. For example:

• one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirement of the Tier and category you assigned it to when it does not;
• for a job or role that does not exist in order to enable a migrant to come to, or stay in the UK.

In order to establish that a genuine vacancy exists for Tier 2 applications, the sponsor is required to:

• undertake a recruitment search from the resident labour market. Any advertising undertaken must be in the most appropriate medium for reaching suitably qualified or experienced resident workers;
• the job description should provide details of the specific skills and experience required for the job on offer. The description should provide a picture of a genuine vacancy requiring genuine skills applicable to the job on offer and should not be tailored to exclude resident workers from applying;
• provide evidence that a thorough and genuine search for an employer was undertaken prior to casting the employer, to include: 1) a list of any employees who were contacted, interviewed, auditioned and/or offered the role; and 2) a statement of the reasons why any employer who was auditioned was not suitable;
• submit any other relevant documents confirming that a genuine vacancy exists, i.e. staff lists, staff hierarchy charts, publicity material, etc.;
• for new businesses where business accounts, balance sheets and VAT returns are not available, it may be appropriate to submit a business plan, invoices, contracts, etc.

Contact Us

For advice or assistance in relation to the Genuine Vacancy Test, or with applying for a Tier 2 Sponsor Licence, Tier 2 General visa or Tier 2 ICT visa, contact our specialist skilled worker immigration barristers & lawyers.