Tier 2 skilled job vacancies - genuineness

22 July 2019

The majority of non-EEA skilled workers are governed by the Tier 2 Work Permit scheme. Some other visa categories (eg spouse/partner visa holders; dependant visa holders) allow work generally but it is the Tier 2 scheme which is the major route for skilled and highly-qualified migrants.

The Home Office is notoriously strict in its supervision in this area. Employers have to go through various hoops and jump over various hurdles to acquire a Tier 2 sponsor licence and after having obtained it they are still subject to a highly prescriptive regime.

The scheme consists of two parts: (1) sponsor licences for employers and (2) visas for employees. The two things substantially interact but they have a separate existence and are governed by different types of rules.

An interesting case which engaged these issues called "Suny" was recently heard at the Court of Appeal. Mr Suny is a Bangladeshi national who held a Tier 4 Student visa. He attempted to switch in-country to a Tier 2 General visa but the application was refused by the Home Office.

The reason that the application was refused was not that there was deemed to be anything wrong with him. The problem lay with the position that Mr Suny had applied to take up; it was, according to the Home Office, not a "genuine" vacancy.

This sort of situation often pertains. The Tier 2 visa application is in many cases relatively straightforward. It is the connected sponsorship issues - which tend to be more complex - that may be the problem. But if the sponsorship is deemed not to be right in some way then the visa application will necessarily be refused.

The position in question was "Sales Accounts and Business Development Manager". The employer (Zamir Telecom Ltd) had provided - as Tier 2 sponsors who wish to sponsor a migrant are required to do - a detailed job description as part of the application for the "certificate of sponsorship" (ie the virtual document that constitutes the application to sponsor the migrant).

But here they ran into some difficulty. According to the Home Office the job description so closely mirrored the "official" job description for that particular kind of job published on the Home Office website that it was suspicious.

This leads us to the interesting conclusion that Tier 2 employers should purposefully make job descriptions a bit different from the relevant official job description, even if they do not really want to - otherwise the Home Office may not be happy with the application.

But this was not the only ground for refusal. The Home Office pointed out (accurately it would appear) that Mr Suny, whilst he had good academic qualifications, had very limited relevant practical experience.

The Home Office stated in its refusal decision that "you do not hold the relevant experience to undertake this role" and that the employer had "failed to provide a sufficient justification as to why they deemed you the most suitable candidate for the role".

This also looked suspicious to them. It looked as though the employer wanted to sponsor Mr Suny just because for some reason they liked him, not for proper or legitimate reasons.

So, enveloped as they were in this world of suspicion, the Home Office refused the application.

The reasonable reader might think, on the basis of these facts, that the Home Office decision was fair. After all, they are charged with the duty of ensuring that the Tier 2 scheme is not abused and that it really does promote the employment of skilled workers who will benefit the UK economy. And in Mr Suny’s case had previously been through Judicial Review with the Upper Immigration Tribunal, which came to the conclusion that the Home Office decision could not be impugned.

But there was one important legal point in the decision which, fortunately for Mr Suny, the Court of Appeal strongly latched on to. The words in the Home Office decision "the most suitable candidate for the role" contained the idea that there were various candidates and that Mr Suny had been prioritised and selected over other candidates, some of whom might have been more suitable.

But had there actually been any other candidates? Well, not necessarily. Mr Suny had attempted to switch from Tier 4 to Tier 2, and in this situation employers are not required to carry out a "resident labour market test" - ie they had not been required to advertise the position to test the resident worker market before attempting to sponsor Mr Suny.

So this part of the decision looked wrong. The only legal principles that properly applied to Mr Suny’s situation were pure principles about the "genuineness" of the vacancy, which are defined by published rules. The potential existence of hypothetical other candidates who may not have actually existed should not have been an element in the decision-making process about genuineness

And the court also identified various other aspects of weak reasoning regarding genuineness. The stated reasons reached an irrationality threshold. And the court said that if it is true - which it is - that migrants are subject to strict and prescriptive rules then so must the Home Office be. The Home Office must stick to its published rules like everybody else.

So the court sent the case back to the Upper Tribunal for fresh - and better informed - consideration.

This was a rare victory in the Tier 2 field; it is often difficult to persuade the court to see things your way. If you run into difficulties with Tier 2 sponsoring you are thus well advised to instruct a good lawyer.

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