Since the Home Office made changes to the Tier 2 Sponsor Licence ‘Genuineness Test’ last year, we’ve seen a notable increase in the number of licence refusals.
It seems employers have struggled to get to grips with the new criteria, which isn’t all that surprising given the highly subjective nature of this latest test.
What’s changed since the previous Genuineness Test?
By ‘subjective’, we mean you now have to demonstrate more than just your status as a legally operating UK business. It’s a much broader test in scope than its predecessor, and now looks at the role(s) you want to recruit for, as well as looking at the organisation itself.
In other words, the Home Office is now scrutinising why your organisation wants to apply for a Sponsor Licence in the first place, and then makes a judgment as to whether they believe this purpose is appropriate.
This all means that decisions about Sponsor Licence applications, and the criteria used to assess them, are no longer black and white. Which is causing headaches for UK employers looking to secure and retain a Licence to employ talent from outside Europe.
Given the growth in global mobility, it’s become business-critical to operate with a Tier 2 Sponsor Licence. So what is expected of employers under the Genuineness Test, and what can employers do to enhance their chances of being successful?
How to approach the Genuineness Test?
You should treat the Genuineness Test as a business case. The Home Office will want to see the reasons why you require a Sponsor Licence and a foreign national for any vacancies which might be filled by resident staff.
If you can present convincing business reasons as to why you need a Licence and a particular role, the application will meet the Genuineness Test and most likely be granted.
It’s important to remember that the Genuineness Test can be applied at any time during the life of your Tier 2 Sponsor Licence; when your organisation is making an application for a Sponsor Licence, or during a licence check, or when you request a Certificate of Sponsorship (COS) through the Sponsor management system. The same criteria apply in all instances.
What are the criteria for a Tier 2 Sponsor Licence Application?
The Genuineness Test looks at the role(s) you are recruiting foreign nationals for and how these roles fit within your organisation as a whole.
You will need to demonstrate that in all cases, the role to be filled by the migrant worker is a ‘genuine vacancy’. This means you have to prove:
- That the role meets the requirements of the Tier 2 category, i.e that it fits with one of the Standard Occupation Codes listed by the government, at graduate level and above.
- That the role ‘fits’ with your organisation, i.e that it seems reasonable that an organisation of your type, operating in your sector, should need that ‘kind’ of role.
- If you have already identified an individual who you wish to appoint to the role, that their previous employment or training ‘fits’ with this new role, i.e that you won’t be paying an individual an extra £10k a year to deliver the same role simply to meet the requirements of the Tier 2 category.
For example, if you are a small restaurant seeking to appoint an HR Manager, the Home Office might deem that an HR Manager does not fit the needs of a small business with only a dozen members of staff.
Looking at the Home Office guidance itself, there are examples of vacancies that would not be considered ‘genuine’. For instance a job which has been exaggerated to deliberately make it appear to meet the requirements of the Tier 2 category. Another example given is where a job has been tailored to exclude resident workers from being recruited. But it’s not an exhaustive list and the Home Office is clear it will query employers wherever a disingenuous vacancy is suspected.
Employers will also need to take care to ensure that job descriptions accurately reflect the role and that recruitment exercises used in support of a Tier 2 application are carried out in compliance with Home Office guidelines, including requirements under the Resident Labour Market Test.
Can you expect additional scrutiny from the Home Office?
If the Home Office has 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.
The visa applicant may also be subject to additional scrutiny where it is suspected that a vacancy is not genuine. The Home Office may ask the applicant to provide additional evidence or information (usually within 28 days), or the applicant may also be asked to attend an interview, where the caseworker will assess the applicant’s knowledge of the role, relevant experience relative to the role, knowledge of the Sponsor in the UK, explanation of how they were recruited and any other relevant information.
The Home Office policy guidance states that while this additional level of scrutiny will not be required in most cases, special attention should be paid to ‘high-risk’ sectors.
High-risk sectors are not defined, but we would suggest that any application involving carers or the hospitality industry should expect greater scrutiny. The applicant’s previous immigration history will also be taken into account when considering the ‘genuineness’ of the application.
What if you are applying for a Licence for future use?
You can still apply for a Licence if you do not have a specific role in mind but know that having one might and will be useful in the future.
The Home Office will still have many of the same questions about the type of role you plan to recruit for in the future, and they will make the same assessment as to whether this role fits with the organisation as a whole.
What if your application is refused?
Since the introduction of the new Test we’ve seen a dramatic increase in the number of people contacting us because of a refused Licence application.
If you are refused an application because you have been deemed not to have met the Genuineness Test, there are two probable justifications.
If the Home Office believes you were acting in good faith but were simply unable to meet the Genuineness Test requirements, it’s likely you’ll need to put together a more robust business case to include extra information. You need to persuade the Home Office why you need the particular foreign migrant for the specific role.
There’s no time bar for re-submission in this instance, so you can send in the new application straight away.
If, however, the Home Office believes that for some reason the organisation has acted in bad faith, they can bar you from submitting a new application for at least 6 months. For example, if you have submitted a document they don’t believe is genuine, or you deliberately tried to defraud by presenting a role as being at the required level to meet Tier 2 when in reality the role is at a more junior level.
If this is the case, you need to seriously consider if you think the Home Office is factually incorrect? If so, you can submit an application to challenge the decision and submit the reasons why they were factually incorrect.
If the reasons for a refused Licence application were factually correct, then there will be a time bar before you can apply again.
However, consider very seriously whether you really believe you can change the Home Office’s opinion next time around. That may require gathering new evidence that will take time. For example, you may not be required to carry out a Resident Labour Market Test for a particular type of applicant, but if you choose to do so it can provide more robust evidence that you really can’t find the skills you need through any route other than employing a migrant worker.
Can you remedy a refused Licence?
The Home Office does make mistakes. These are busy, they handle countless applications. So before you panic, consider why the Licence application was refused, what you can do to remedy it and how you can readdress it. In particular, if the Home Office believes the organisation has done something in bad faith, then you really need to challenge it as this is your business reputation on the line.
As it’s notoriously difficult to accurately predict a Home Office ruling, and given the Government’s removal of Appeal Rights for almost all immigration applications, these subjective tests put applicants and their employers 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. All the more reason to get it right first time round.