A Guide for Sponsor Licence Holders on the Genuine Vacancy Test in Skilled Worker Visa Applications
Our Immigration Solicitors recently blogged about the judicial review decision in One Trees Estates Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1644 (Admin) (26 June 2024). The case involved a nursing home that had its sponsor licence revoked as it had not complied with the genuine vacancy test.
In this article, our Sponsorship Licence Lawyers run through the immigration rules and Home Office guidance on what amounts to a genuine vacancy and the implications for your sponsor licence and business if you don’t follow the guidance.
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 decision in One Trees Estates Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1644 (Admin) (26 June 2024)
The One Tree Estates nursing home employed over 30 sponsored employees on Health and Care Worker Visas. Some of the sponsored employees were given certificates of sponsorship as senior carers. When the Home Office carried out an audit and interviewed some key personnel and sponsored employees, the Home Office official concluded that some senior carers were doing the work of carers. This meant the company had incorrectly sponsored them as there wasn’t a genuine vacancy for a senior carer.
Non-compliance with the genuine vacancy test is a mandatory ground for sponsor licence revocation. The nursing home applied for a judicial review of the Home Office's decision to revoke its sponsor licence arguing that the Home Office should have carried out an assessment of the wider impact of the revocation of the sponsor licence and exercised discretion in its favour. The court disagreed with the nursing home.
The implications of One Tree Estates
The judicial review decision emphasises the need to ensure that job descriptions match the standard occupational classification code on the certificate of sponsorship and that sponsored employees then do work that matches the work they are sponsored to do. Without specialist Immigration Law Training many key personnel and sponsored employees don’t understand that what to them may seem a minor or technical non-compliance could result in the revocation of the company’s sponsor licence.
The genuine role requirement
The Home Office ‘Workers and Temporary Workers: sponsor a skilled worker’ guidance states that when assessing whether a Skilled Worker Visa applicant meets the points-based immigration system requirement of 70 points no points are to be allocated for a job offer if the Home Office official thinks there are reasonable grounds to believe that the job:
- Does not exist
- Is a sham
- Has mainly been created so the Skilled Worker Visa applicant can apply for entry clearance or permission to stay
The guidance goes on to say that if a certificate of sponsorship is allocated to a Skilled Worker Visa applicant and the role is not genuine the visa applicant’s application will be refused and the Home Office may act against the business. That is code for your sponsor licence may be at risk of revocation.
What is a genuine vacancy?
Guidance referred to as ‘Workers and Temporary Workers: guidance for sponsors part 3: sponsor duties and compliance’ sets out the test for a genuine vacancy:
- The employer requires the visa applicant to perform the job functions
- The job is not at a lower skill level than that set out in the job description and standard occupational classification code (For example, asking an accountant to do the work of a bookkeeper or finance clerk)
- The job is appropriate to the sponsoring employer in terms of its business model, business plan and scale
The Home Office can ask for additional information or paperwork to satisfy the Home Office official that the job meets the criteria. Additional enquiries may be made if, for example, the job description does not sit right with the nature of the business.
Getting the genuine vacancy test right
There are many stages where the genuine vacancy test can go wrong. For example:
- Not matching the job description to the standard occupational classification code on the certificate of sponsorship
- Allowing managers to change the sponsored employee’s job role without considering the implications for the individual’s Skilled Worker Visa or the company's sponsor licence
- The Skilled Worker Visa holder not understanding the importance of carefully describing the work they do to Home Office officials during compliance visits and audits
- Skilled Worker Visa holders being promoted without the visa implications being considered
- The Skilled Worker Visa holder taking on additional tasks to cover for absent colleagues on maternity leave or other long periods of absence
Some of these issues can be spotted if your business uses Sponsorship Licence Lawyers to provide a Sponsor Licence Management Service or if Business Immigration Solicitors provide regular Immigration Law Training for key personnel or if your Sponsorship Licence Lawyers carry out mock audits and spot issues so any errors can be rectified.
How OTS Solicitors can help with your sponsor licence needs
Our Sponsorship Licence Lawyers can help you with:
- Sponsor licence applications
- Advice on the genuine vacancy test and certificates of sponsorship allocation
- Full Sponsor Licence Management Services
- Mock audits
- Immigration Law Training either in-person or through webinars and Zoom meetings
- Compliance advice if you are notified of a planned Home Office audit visit
- Advice on sponsor licence suspension or revocation
- Representation in judicial review proceedings if you have the grounds to challenge a sponsor licence revocation
- Advice and representations on cooling-off periods
Our experts are always happy to discuss your specific business immigration needs and tailor our services to your business requirements.
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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