A major development in the Tier 2 categories has been announced. A 'genuine vacancy' test will apply to Tier 2 (Intra-Company Transfer) and Tier 2 (General) migrants from 6 November 2014. This will give entry clearance officers and caseworkers the power to refuse applications where there are reasonable grounds to believe that:
- the job described does not genuinely exist;
- the job has been exaggerated to meet the skills threshold;
- the job has been tailored to exclude resident workers; or
- the applicant is not qualified to do the job.
Although the Points-Based System was designed to reduce discretion, this new test is reminiscent of the Work Permit days in that it allows caseworkers to make subjective assessments as to the genuineness of a role. The introduction of this test follows concerns by the Home Office of the practice of tailoring job vacancies to exclude resident workers and the creation of artificial vacancies.
The Immigration Rules are also being amended to include the requirement, under existing guidance, that migrants cannot be sponsored to fill a position, to undertake an on-going routine role or to provide an on-going routine service for a third party who is not the sponsor.
Sponsors should therefore be aware that UKVI may ask to review contracts between Tier 2 sponsors and third parties to make sure that the work is indeed project based.