The Home Office needs to ensure that those applying to come to the UK for work are eligible and that a reputable employer has a genuine wish to sponsor them. Ask yourself the three questions below in order to ascertain whether or not you are likely to pass the Tier 2 Sponsor Licence genuineness test for a sponsor licence application.
Tier 2 Sponsor Licence Genuineness Test Q1: Are you a genuine organisation operating lawfully in the UK?
When reviewing your sponsor licence application and considering the Tier 2 Sponsor Licence genuineness test, one of the things the Home Office will consider is whether your organisation is a genuine organisation operating lawfully in the UK. An organisation will be deemed as “operating or trading” in the UK from the point at which it is incorporated.
There are certain documents related to the company that you will be required to provide to evidence this. Advice from an immigration lawyer will ensure that your sponsor licence application is supported by the appropriate documents to prove that your business is a genuine organisation operating lawfully in the UK.
After a sponsor licence has been granted, you may be visited by a compliance officer to check you are complying with your sponsorship duties. The compliance officer will check that:
- The information given is accurate and complete
- You are able to offer employment
- You are genuine and trading or operating lawfully in the UK
- There are no reasons to believe you represent a threat to immigration control
- You are committed to, and actually are, complying with all the duties of sponsorship
Even after a sponsor licence has been granted, it can be revoked if the Home Office believes you no longer have an operating or trading presence in the UK.
Tier 2 Sponsor Licence Genuineness Test Q2: Is there a genuine vacancy?
A migrant applying for a Tier 2 (General) visa is required to fill a genuine job vacancy that cannot be filled with a suitably qualified or skilled settled worker. The Tier 2 Sponsor Guidance sets the requirements for a genuine vacancy as one which:
- requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category – if you have already assigned a CoS, the vacancy must be for the period of employment stated on the CoS
- does not include dissimilar and/or lower-skilled duties
The Guidance goes on to provide some examples of vacancies which are not considered to be genuine. This includes:
- one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category when it does not
- for a job or role that does not exist in order to enable a migrant to come to, or stay in, the UK
- advertisements with requirements that are inappropriate for the job on offer, and have been tailored to exclude resident workers from being recruited
As part of the Tier 2 Sponsor Licence genuineness test, an organisation will be required to provide evidence to establish that the requirements above have been met. If you are a joint venture, the Home Office will not accept informal agreements of cooperation as sufficient evidence that a genuine vacancy exists for a migrant in the UK. An application will be refused if the business does not have an operating or trading presence in the UK. If your business is one which involves operating no or little physical office space, the Home Office will consider the type of work a sponsored worker will be doing and where the worker will be carrying out their employment duties. The immigration barristers at Richmond Chambers have the experience to assist you with your application.
Even after a sponsor Licence has been granted, it can be revoked if the Home Office believes that you no longer have an operating or trading presence in the UK.
The Home Office use various methods to establish the genuineness of the vacancy and subsequent job offer. One of the methods of establishing this is through the Resident Labour Market Test. Read our previous blog on advice regarding passing the Resident Labour Market Test.
Tier 2 Sponsor Licence Genuineness Test Q3: Can you offer genuine employment?
The final part of the Tier 2 Sponsor Licence genuineness test is that the Home Office will consider whether or not the organisation can offer genuine employment which meets the appropriate salary and skill level.
Examples of circumstances in which the Home Office will not be satisfied that the employment is genuine include where:
- You do not currently employ, or have never employed, anyone in a role which meets the current Tier 2 requirements.
- You tell us you require or have already sponsored a person in a managerial role which appears unnecessary.
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It is important to ensure that any application for a Tier 2 Sponsor Licence satisfies the Tier 2 Sponsor Licence genuineness test since it may be difficult to challenge an assertion that your organisation, vacancy or employment is not genuine.