Genuine
vacancy tests
explained

1 December 2014

All current and prospective sponsors should be aware of the recent changes to the immigration rules. Most recently, UK Visas and Immigration (UKVI) issued new guidance for sponsors on how to sponsor Tier 2 and 5 migrant employees and announced that sponsors may only employ migrant workers for a genuine vacancy. As a result, the genuineness of each Tier 2 vacancy will be assessed. Since then many questions have been asked regarding what UKVI actually means by a genuine vacancy, how this will be assessed and how exactly the portending genuine vacancy tests will be implemented.

Here we take the time to explain the important information that has so far been issued by UKVI on the topic.

So what is a genuine vacancy?

The new guidance stipulates that, in order for a vacancy to be classed as genuine, it needs to satisfy certain criteria. These criteria can be set out as follows:

  • the vacancy must require the jobholder to perform specific duties and responsibilities for the weekly hours and length of the period of engagement
  • the position must meet all the requirements of its Tier and Standard Occupation Classification (SOC) code
  • the vacancy must not include any dissimilar or lower-skilled duties to that of its Tier and/or SOC code
  • the position may not have an exaggerated or incorrect job description to keep it in line with its Tier and SOC code
  • the Resident Labour Market Test (RLMT) must not have been tailored to suit a particular migrant and thereby excluded resident workers
  • if the applicant is not appropriately qualified for the vacancy at the time of application, they must be able to prove that they can reasonably be expected to accrue the appropriate qualification(s) by the time they begin the job, eg. a letter from the relevant exam board confirming that the applicant has registered to sit the necessary exam.

How will this impact on Tier 2 sponsors and their duties?

This new approach to Tier 2 and 5 vacancy assessment will have a direct effect on Tier 2 sponsors because Entry Clearance Officers and caseworkers have the right to refuse an application if they have reasonable grounds to believe that the vacancy is not genuine, if any of the above criteria are not met or if requested information is not supplied within the 28 day time frame. It remains to be seen how the assessment of these criteria will play out in terms of how much scrutiny sponsors will face.

UKVI will most certainly request additional information for applications made on or after 6 November 2014, but it is unknown whether such requests will be carried out on a random basis, whether certain types of applications will be targeted or whether all applications will face some sort of request for additional information. The sponsor then has a period of 28 days to respond to the request before risking the application being refused.

If you are in any doubt as to how the new genuine vacancy tests will affect you, please do not hesitate to contact Smith Stone Walters.

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