Why it is vital to focus on the genuine vacancy
The genuine vacancy requirement tends to be overlooked by many applicants, which is a mistake that may cause sponsor licence or visa refusal. This is why we decided to write this article to draw attention to its importance for sponsor licence and sponsored worker visa applications. In short, the purpose of the genuine vacancy test is for the Home Office to assess if the job is genuinely required by the business and not simply created to facilitate entry of foreign nationals to the UK.
If your business is applying for a sponsor licence, issuing a Certificate of Sponsorship (COS), or your migrant worker is applying for a visa under the Skilled Worker, Scale-up or Global Business Mobility (GBM) routes, UK Home Office must be satisfied that you can offer genuine employment that meets the salary and skill-level criteria of those visa routes. This is called Genuine Vacancy test.
Genuine Vacancy test
The Genuine Vacancy test gives Home Office flexibility in assessing sponsor licence, COS certificate and sponsored work visa immigration applications. The test may cause problems for sponsor employers and work visa applicants as it does not have mathematical parameters and therefore allows for unpredictable discretion from Home Office caseworkers.
Our article is particularly recommended for business owners applying for a sponsorship licence or issuing COS certificates and for migrant workers who are applying for work visas. Good understanding of the Genuine Vacancy requirements can help you avoid a sponsor licence or visa refusal. We noticed that the Genuine Vacancy test tends to be overlooked by employers submitting sponsor licence applications on their own and by work visa applicants.
What is the definition of Genuine Vacancy
Under the current law for sponsored work visas there is no mandatory job advertising. However, employers have to ensure that the jobs they offer to migrant workers meet the Genuine Vacancy requirements. According to Home Office, genuine vacancy is one which:
• 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.
Examples of vacancies that according to Home Office guidance are not considered to be genuine include, but are not limited to:
• a role that does not actually exist;
• one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route when it does not, or is otherwise a sham;
• a job or role that was created primarily to enable an overseas national to come to, or stay in, the UK;
• advertisements with requirements that are inappropriate for the job on offer (for example, language skills which are not relevant to the job) or incompatible with the business offering the employment, and have been tailored to exclude settled workers from being recruited.
In addition, Home Office expects that when sponsor employer assigns a Certificate of Sponsorship (COS) the duration stated on the CoS must be an accurate reflection of the expected duration of the role. Sponsor must not assign a long-term CoS for a short-term role to enable the worker to be granted a longer period of permission.
In general, Home Office will not award points for sponsorship if they have reasonable grounds to believe that the job:
• does not exist
• is a sham; or
• has been created mainly so the worker can apply for entry clearance or permission to stay.
If you assign a CoS for a role which is not genuine, they will refuse the worker’s visa application and they may take action against you as the sponsor employer, which includes sponsor licence suspension or revocation. The genuine vacancy requirement is part of the sponsorship duties and compliance obligations. We write more about the sponsorship duties on our other page here.
What typical scenarios can prompt Home Office concern about meeting genuine vacancy
If your business involves using no (or little) physical office space (a ‘virtual business model’), Home Office will consider the type of work a sponsored worker will be doing and where the worker will be carrying out their employment duties. They may need to conduct a compliance check and/or see contracts between you and any third party (if migrant workers that you sponsor work on client contracts).
Below are two examples of circumstances taken from Home Office sponsor guidance in which they may not be satisfied that a sponsor employer can offer genuine employment that would meet the requirements of the Skilled Worker route. These examples are not intended to be exhaustive.
You do not currently employ, or have never employed, anyone in a role which meets the Skilled Worker requirements. This could be if you are a small retail outlet and currently only have people working for you as shop assistants or in other lower-skilled roles.
You tell us you require, or have already sponsored, a person in a role which does not appear necessary for your business – for example, you are a small fast food outlet and you tell us you need, or have appointed, a full-time business development manager, HR manager or publicity manager, but there is no credible need for these roles in your business.
Why is the test so important for Skilled Worker, GBM and Scale-up visa
The genuine vacancy is one of the most important requirements for Skilled Worker, Global Business Mobility and Scale-up visa routes (all sponsored work visa routes). Home Office checks if the requirement is met as a priority. Without a genuine vacancy there can be no sponsorship under those visa categories and your sponsor licence application can be refused or an existing sponsor licence may be revoked (cancelled). It is worth pointing out here that Home Office caseworkers can spot red flags for genuine vacancy, such as a very small business, no other skilled jobs at the business, tailored job description to exclude local workers, etc.
When Home Office is not satisfied that sponsor employer can offer a genuine employment the sponsor licence application will be refused and if the employer already holds the licence the COS application or the work visa application will be refused. This can also have negative impact on the sponsor licence including causing the licence to be suspended or even revoked.