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Sponsor Licence Guidance and the Genuine Vacancy Test

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If you are planning to sponsor an overseas worker on a skilled worker visa you need to be able to satisfy the Home Office that you have a genuine vacancy for the recruit to fill. If you don’t, the visa application will be refused and you could put your sponsor licence at risk.

In this blog, our immigration solicitors look at the genuine vacancy requirement and the detailed sponsor licence guidance on the test.

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

The definition of a genuine vacancy

You would think that a genuine vacancy would be fairly obvious; a sponsoring employer has a job and it needs filling. However, the Home Office guidance ‘Workers and Temporary Workers: Guidance for Sponsors part 3: Sponsor Duties and Compliance’ defines what amounts to a genuine vacancy. It's important reading as the Home Office has upgraded the genuine vacancy test from guidance to a requirement.

A genuine vacancy is defined in the guidance as one that:

  • Requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
  • Does not include dissimilar and/or predominantly lower-skilled duties
  • Is appropriate to the business in light of its business model, business plan and scale

There is no need to prove that you could not initially fill the post by employing a British citizen or settled person. However, the Home Office does require a sponsoring employer to show, when asked to provide additional information or evidence, that the job the visa applicant has been recruited to fill is not a sham and that the immigration rules are not being flouted either deliberately or inadvertently by the recruit being asked to do work that doesn’t fit with a job’s standard occupational classification code. In other words, a sponsoring employer can't employ an overseas worker on a skilled worker visa and then ask the employee to carry out lower-skilled work duties.

Home Office guidance on genuine vacancies

The Home Office guidance provides examples of situations where Home Office officials might conclude that a job does not meet the genuine vacancy test. These include:

  • A job that has been made up and doesn’t exist. For example, created to allow a friend or relative to apply for a skilled worker visa
  • A job where the certificate of sponsorship job description doesn’t match the actual job description
  • A job and application process that has been tailored to overseas job applicants. For example, requiring unnecessary language skills or limited to candidates with an overseas qualification

A sponsoring employer must ensure that the job remains genuine throughout the length of the sponsorship. It isn’t sufficient for a job to meet the genuine vacancy test on the date of the skilled worker visa application or during the induction and probationary period. The job must remain consistent with the certificate of sponsorship throughout the period of sponsorship. The Home Office can check this when processing the visa application and when conducting checks and compliance visits.

The Resident Labour Market Test

Sponsoring employers who sponsored overseas workers on the Tier 2 (General) visa will remember the Resident Labour Market Test. This had to be conducted each time an employer recruited an employee on a work visa. The test no longer has to be carried out but as the Home Office may ask for information and evidence that you have a genuine vacancy it still makes sense for you to keep a paper trail so you have paperwork to hand if Home Office officials ask you to prove that the job is genuine.

The genuine vacancy test paperwork

Prudent sponsoring employers keep evidence of how an employee meets the genuine vacancy test in case they are asked for information about how an individual or a job satisfies the genuine vacancy test. In any event, sponsor licence holders are required to keep some specified information about the candidate and recruitment process as set out in Appendix D: guidance for sponsors on keeping documents.

The Home Office guidance says that a sponsoring employer must retain evidence of any recruitment activity undertaken when a role was filled by a sponsored worker, even where there is no formal resident labour market test requirement.

If you advertised the job, the guidance says you must keep details of any advertisements including a screenshot, printout or photocopy of the advert, or a record of the advert wording and information about where the job was advertised and for how long. The guidance does not prescribe where jobs should be advertised or for how long.

You also need to keep a record of the number of people who applied for the job, the number of candidates shortlisted for interviews or other stages of the recruitment process, such as sitting an online test. Evidence is required to be kept of how you selected the candidate for the job. This could be interview notes from the successful candidate’s interview or minutes of a meeting held to score the job applicants and decide on the most suitable candidate. Sponsoring employers do not need to keep copies of all the applications received for a job or the unsuccessful candidates’ applications or interview notes but a summary may be helpful if you are concerned that questions might be asked.

How can our Sponsorship Licence lawyers help your business?

Our specialist Sponsorship Licence lawyers can help you with all aspects of the sponsor licence process, from the first steps to make sure your business is ready to make an application to renewal application or to help address concerns that your licence may be downgraded or even suspended.

At OTS Solicitors we understand that there is a fair amount involved in managing a sponsor licence as well as doing all the usual HR activities. That’s why we offer a sponsor licence management service for a fixed monthly retainer so the hassle of recruiting from overseas and keeping up with the latest immigration rules is kept to a minimum.

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

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