The Home Office introduced a new ‘genuineness’ test for employer’s who wish to recruit individuals who are non EEA nationals subject to UK immigration control in April 2014. Little has been written about it but the potential impact on existing and prospective sponsor licence holders is marked.
The significance of the test is that, firstly, it imports a departure from the clear specific guidance which the Home Office sought to put in place when setting up the sponsor licence system and Tier 2 scheme. Secondly, it can be applied either when an employer is making an application for a sponsor licence or during a licence check or when requesting a Certificate of Sponsorship (COS) through the employer sponsor management system. In other words, the genuineness test can be applied at any time in the life of a sponsorship licence.
The test is set out in the Home Office Tier 2 & 5 Points Based System guidance and states that the employment must be genuine and meet its guidance on ‘skill level and appropriate rates of pay.’
The skill level for Tier 2 General employers is generally at NVQ level 6, but there are some exceptions when the level can be lower such as:
The appropriate level of pay for a particular job can be obtained from the relevant code of practice.
The Home Office can apply the test at the sponsor licence application stage or during a sponsor licence check. The guidance states that a scoring system will be used when determining the suitability of a case. It provides 2 examples as to how the genuine employment test may be applied with the caveat that the examples are not ‘exhaustive’, see below:
“(i). You do not currently, or have never employed anyone in a role which meets the current Tier 2 requirements. For example, you are a small retail outlet and currently only have people working for you as shop assistants or in other low-skilled roles; or
(ii). You tell us you require (or already sponsored) a person in a managerial role which appears unnecessary, for example you are small fast food outlet and tell us you need, or have appointed a full-time HR manager or publicity manager”.
For small employers or those that do not have other highly skilled employees scrutiny from the Home Office is likely to be high.
What is evident is that a Home Office caseworker will have discretion to assess a sponsorship licence business. The question is how will the discretion be exercised? If a negative decision is made, will the Home Office disclose the information they used to consider the case?
If the business employs someone in a role which appears to the caseworker to be ‘unnecessary,’ the application for the licence or the licence itself can be questioned. How will the Home Office caseworker determine that the employment or proposed employment is unnecessary? It is possible that a small fast food outlet may anticipate requiring a HR manager as they have had a capital injection or undergone a marketing exercise. It is not clear how the Home Office caseworker will make an assessment. Will the assessment be based on documents provided or will further documents be requested? Again, will the caseworker disclose the information on how the decision was considered?
The test will also be applied when an employer makes an application under Tier 2 General for a COS.
In short, an employer seeking to employ a new hire under Tier 2 General typically needs to advertise the job for at least 28 days in a specified manner on Universal Jobsmatch and one other medium as specified by the code of practice for that occupation, unless an exemption applies.
An application for a Certificate of Sponsrship (“COS”) is then made through the restricted CoS route which entails supplying the Home Office with information on the recruitment process and providing reasons why any resident worker applicants were rejected. The decision to grant a restricted COS is made by a Home Office panel that sits on the 11th of each month.
The Home Office now have scope to question whether the employment in question satisfies the genuine employment test, notwithstanding an advertising process having been undertaken by the employer. It is unclear as to what criteria the Home Office will use to make this assessment as the guidance is silent. However, if an application for a COS through the restricted COS route is rejected, we believe the employer should expect a visit from the Home Office for a Tier 2 sponsor licence check. This raises the possibility that their licence could be revoked. Given that there is no statutory right of appeal against sponsor licence decisions, including CoS rejections, the only available legal remedy will be by way of judicial review which can be a lengthy, uncertain and costly process.
The new genuine employer test received little or no attention when the Home Office made their changes in April. It is likely to lead to negative decisions for both sponsor licence and Tier 2 General visa applications and the revocation of licences for some employers already on the List of Approved Sponsor Licence Holders.
RLegal is a firm of specialist UK immigration solicitors based in central London. We can assist with sponsor licence and Tier 2 General applications.