If UKVI suspends a sponsor’s Tier 2 sponsor licence, the organisation has 20 working days to respond. It is important that any response filed addresses all the grounds referred to in the decision notice. One of the most common grounds is where UKVI alleges that a sponsored worker is not performing a ‘genuine vacancy’. Nick Gore explores this topic.
A decision to suspend a sponsor licence normally takes place after an officer from UKVI has audited the organisation and reviewed the tasks and duties the sponsored worker has been performing. During the visit, they will often interview the sponsored worker(s) and/or key members of staff.
UKVI will also often compare the sponsored worker’s tasks, duties and role with that recorded on the Certificate of Sponsorship (‘CoS’), and any adverts that were used as part of the Resident Labour Market Test (‘RLMT’) (if this was required as part of the sponsorship process). It is extremely important therefore that the role, duties and responsibilities outlined on both the CoS and any adverts are accurate.
Having reviewed the evidence, Home Office officials may consider whether the role the sponsored worker is undertaking is classified under the correct Standard Occupational Classification (‘SOC’) code or whether the role is actually of a lower skill level and SOC code than that recorded on the CoS. Therefore, it is extremely important that the correct SOC code is selected when assigning a CoS.
Sometimes, Home Office officials conclude that the role does not represent a ‘genuine vacancy’. The Tier 2 Sponsor Guidance sets out that a genuine vacancy is 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 document goes on to include examples of vacancies that are not considered genuine:
- 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
Example: Business Company Ltd
Business Company Ltd has had its Tier 2 sponsor licence suspended. UKVI has alleged that Dan’s role is not a genuine vacancy.
Dan was hired as a Sales Director and SOC code 1132 – Marketing and Sales Directors – was cited on his CoS as the closest match to his role. Dan’s role includes analysing the sales figures of Business Company Ltd and reviewing the effectiveness of the company’s marketing campaigns. He produces reports and recommends potential strategies and presents this to the company’s senior management team. Dan supervises a team of sales representatives who collate the best and worst comments online users make about the products. Sometimes Dan reviews these comments and refers to them in his reports to senior management. Dan also trains his team on how to enhance the company’s promotional campaigns and products and reviews the team’s effectiveness.
On the day of UKVI’s inspection, Dan was creating a report for the senior management team that included a review of online reviews. The team members who would usually perform that work were at an external training session and as Dan’s boss had wanted the report urgently, Dan had been analysing and collating some of the reviews himself. During the visit, UKVI’s officer asked Dan to explain his role and Dan provided a full explanation. The officer also asked Dan to show him the work he was performing on the day of the visit which Dan did.
Several weeks later, the company received a letter from UKVI notifying it that a decision had been made to suspend its sponsor licence. It was alleged that Dan was not meeting the duties set out on the CoS assigned to him and was performing a lower level role.
In the interview notes, UKVI’s officer recorded that Dan spent a significant amount of time reading online reviews of the company and sending them to his manager. The notes show that Dan said he ‘looked at the financial side of the business’ but the interviewer did not ask him what this included. The notes contain a list of many of the other duties Dan performs at a senior level, but it is not clear on the notes as to why these were written down and there is no indication that the officer asked Dan to explain his role in any detail.
Challenging the assertion that the vacancy is not genuine
It can be very difficult to challenge this type of allegation and a successful challenge very much depends on the evidence provided by the organisation.
Firstly, any interview notes and notes from the inspection should be obtained from UKVI. If the notes do not reflect the allegations made in the suspension letter, or are not accurate, the decision may be based on a misunderstanding. This should be noted in the representations, and any evidence to demonstrate an accurate understanding should be provided.
The evidence the Home Office inspectors reviewed should also be re-examined to see if there are any aspects that have not been understood in relation to the sponsored worker’s duties and responsibilities. If an explanation can be provided which demonstrates that the duties are at a higher level than Home Office officials have asserted, this should be set out in the representations.
In the above example of Business Company Ltd, it should be explained that Dan only looks through the best and worst reviews, as compiled by his team, rarely, and only for illustrative purposes. It should be set out that the interviewer may have misunderstood that he only performs this task on some days, not every day.
Further, the representations can set out that ‘looking at the financial side’ covers many of Dan’s duties. If the interviewer had pressed this further, Dan would have explained in more detail.
As organisations can present further evidence in their representations, sponsors should collate documents which demonstrate that the sponsored worker was performing the role as set out on the CoS and as per the SOC code. Such documents should be reviewed carefully to ensure that they do demonstrate higher level roles and duties. The best type of evidence is that which can be independently verified such as emails setting out advice.
For Business Company Ltd, evidence to provide would include the reports and recommendations Dan has compiled, providing they demonstrate a high level of analysis. If the reports have his name and date on them this is helpful, and an email showing that Dan sent them is even better. Evidence should be compiled from across his sponsorship, which could be several years.
Other evidence to present includes business meeting minutes, evidence of Dan’s training sessions, emails between Dan and his colleagues where he is clearly overseeing their work and performance, etc.
Here we have focussed on genuine vacancy issues. It is important of course, that any other allegations raised by UKVI are also dealt with in a detailed manner.
How we can help
We are experienced at helping organisations meet their sponsor duties and we also offer compliance reviews. If a licence has been suspended, we have substantial experience in preparing detailed and robust representations. For further information, please contact us.