Tier 2
compliance:
the 'genuineness' test
11 January 2017
As a Tier 2 Sponsor Licence holder there are a number of rules and requirements which you must adhere to when hiring a non-EEA national (from outside the European Economic Area).
Apart from remaining compliant with the UK Immigration Rules and Sponsor Licence stipulations, there are other less tangible responsibilities which must be taken into consideration when hiring a non-EEA national or when applying for a licence to do so.
One of these considerations is the ‘genuineness’ test, by which the Home Office ascertains whether or not you have a genuine need to recruit employees from outside of the EEA. This assessment is approached by the Home Office in a variety of ways and in order to stand up to this scrutiny we advise you to consider the following:
- Is your need for a sponsor licence genuine?
Do you have a genuine need for a Tier 2 Sponsor Licence? If you are applying for the right to employ professionals from outside the European Economic Area, the recruitment needs of your business will be assessed during the consideration of your Sponsor Licence application. Should the Home Office believe that the talent which you are seeking can be found in the UK then your need for a Sponsor Licence will not be seen as ‘genuine’.
- Is the role for which you are advertising a genuine vacancy?
The Home Office will closely scrutinise the ‘genuineness’ of each vacancy which you wish to fill with a Tier 2 migrant. This will be assessed as part of the migrant’s Tier 2 application and the role’s ‘genuineness’ will be ascertained in a variety of ways including whether or not the position or its responsibilities have been exaggerated, and whether it appears that the Resident Labour Market Test has been tailored to suit the applicant in question.
- Has the role been advertised correctly in the UK?
If the role is not on the Shortage Occupation List you will most likely need to advertise it in the UK for a full 28 days on an approved specified job advertisement platform before being able to offer it to a Tier 2 migrant. This is known as the Resident Labour Market Test and checks that no suitable candidate can be found in the UK. Records of all job applicants must be kept on file along with all candidate interview notes.
- Is the Tier 2 migrant appropriately qualified and experienced for the role in question?
An employer should not hire a migrant who is under-skilled or under qualified for the role in hand otherwise the role may not be seen as genuine. If the migrant is not appropriately qualified for the vacancy at the time of application, proof that they expect to accrue the appropriate qualifications by the time they begin the job must be provided as part of the application.
- Will the applicant meet the relevant immigration requirements?
Before offering the role to a Tier 2 applicant, it is important to consider whether or not they will be able to meet all requirements of the relevant immigration category such as an English language test. If they are unlikely to meet one or more of these requirements then it would be wise to reconsider your choice of job candidate.
More on Tier 2 compliance with the Immigration Rules:
Compliance checks for the festive season
New Tier 2 salary requirements
New Immigration Rules announced for 24 November 2016
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