The test of genuineness for vacancy introduced by the UKVI empower UK Entry Clearance Officers to evaluate Tier 2 visa applications on a ‘balance of probabilities’ and to refuse applications for entry to the UK if there are ‘reasonable grounds’ to believe that the job described by the sponsor company in its offer advertisements is exaggerated to meet the Tier 2 Skills requirements or is inappropriate for the job on offer.
The ECO will also examine whether the job description has been tailored to exclude UK resident (local) workers from being recruited.
The policy guidance of the Home Office defines a genuine vacancy as one which:
a) requires the jobholder to perform the specific duties and responsibilities for the job and
b) does not include dissimilar and/or lower-skilled duties
If the Home Office have any concerns that a vacancy is not genuine, they may request the employer to provide additional information or evidence. Failure to provide this evidence within the requested time could result in the application being refused.
Home Office guidance also provides examples where the vacancy would not be considered genuine if for instance advertisement is exaggerated to meet the Tier 2 Skills requirements.
The rules require that the applicant applying for Tier 2 position has to either be at PhD level or NQF level 6. The appropriate salary levels start from £ 20,500 p.a. and will vary depending whether the applicant has previous experience in the role or is a new entrant.
In certain cases, it is likely that in order to be satisfied about the genuineness the Entry Clearance Officer (ECO) would also consider interviewing the applicant to ascertain that the applicant:
- genuinely intends to undertake the role for which the Certificate of Sponsorship (CoS) was assigned and has knowledge of the role
- has the necessary qualifications, relevant experience and skills to undertake the role for which the CoS has been assigned
- has knowledge of the Sponsor in the UK including an explanation of how they were recruited
- will not undertake employment in the UK other than that permitted by the Entry Clearance, leave to Enter or Leave to Remain
Whilst it is expected that larger companies with UK subsidiaries will take it in their stride to ensure compliances, the smaller companies will have to be more diligent to ensure compliances with the myriad rules. Regardless of the size of the organisation the applicants will need to be prepared for delays caused by the scrutiny of the applications.
In light of the inconstant quality of Home Office in decision making, and the removal of Appeal Rights, these subjective tests put applicants (and their Tier 2 sponsors) in a precarious situation. While the option for Administrative Review remains available, a fresh application is often the only effective means by which to respond to a caseworker’s decision to refuse on ‘genuineness’ grounds.
At SmartMove2UK we have the experience to advice you on applications under the Tier 2 category for sponsor registration, meeting the resident labour market test for Tier 2 General visas and complying with the ‘Genuineness Test’
Our proven experience in processing Tier 2 applications means we can provide complete support for the entire application process.
