Most UK employers that sponsor migrant workers are familiar with the requirement that any role sponsored must represent a genuine vacancy. However, in recent months we have seen the Home Office adopt a more probing approach when assessing applications for Certificates of Sponsorship (CoS), considering sponsor licence applications and conducting compliance visits.
Rather than simply confirming that a role falls within an eligible occupation code, the Home Office is increasingly seeking to understand why the role exists, how it fits within the business, and whether it is genuinely required.
For employers, this means it is no longer sufficient simply to have a well-written job description. Businesses should be prepared to demonstrate the commercial rationale for the role and retain evidence showing that it forms part of the genuine operation of the organisation. Whilst the Home Office mainly raise queries in relation to Skilled Workers, these requirements can technically also be applied to expatriate migrant workers on the Global Business Mobility routes.
What does "genuine vacancy" mean?
The rules require that a sponsored role must represent a genuine vacancy and must not have been created mainly to facilitate an immigration application.
In practice, the Home Office will consider whether:
- the role genuinely exists within the organisation;
- the duties accurately reflect the work the employee will perform;
- the salary and skill level are appropriate for the position;
- the vacancy is consistent with the nature and scale of the business; and
- the role has not been artificially created solely to enable sponsorship.
Although the majority of employers have legitimate recruitment needs, the Home Office may ask questions about how this can actually be evidenced. Where the business cannot adequately explain the commercial need for the position, the Home Office are increasingly likely to refuse to allocate a CoS.
Looking beyond the job description
Many organisations understandably focus on preparing a compliant job description. Whilst this remains important, the Home Office will often consider the wider context.
For example, an employer should be able to explain:
- Why has this role become available? Is it a newly created position or a replacement?
- How does the role fit within the organisational structure?
- What business need does the role address?
- Does the size of the business support the need for this position?
What evidence should employers retain?
There is no prescribed Home Office checklist of documents that employers must keep to demonstrate a genuine vacancy. However, retaining appropriate supporting evidence can make it significantly easier to respond to any enquiries. Useful evidence may include:
- organisational charts showing where the role sits within the business;
- evidence of business growth, expansion, new contracts or increased workload;
- records showing that the role replaces a departing employee where applicable;
- employment contracts and detailed job descriptions.
The appropriate evidence will naturally vary depending on the size and nature of the business. A multinational organisation will often have different documentation available compared with a growing SME.
Common areas of concern
In our experience, certain situations are more likely to attract scrutiny.
Generic job descriptions
Job descriptions should be tailored to the actual responsibilities of the individual role rather than relying solely on generic wording taken from occupation codes.
Business size and staffing structure
The Home Office may also consider whether the proposed role appears proportionate to the business. For example, a small company seeking to sponsor senior managers or directors may be asked to explain how those positions fit within the organisation and why they are commercially necessary.
Similarly, businesses experiencing little or no trading activity may face greater scrutiny where they seek to sponsor new employees.
Unfortunately, our experience is that it is much harder to convince the Home Office of a need for a role that is itself focused on increasing the levels of business (for example, sales or marketing roles) than it is for a role that services higher demand (for example, hiring an additional engineer because demand, indicated by revenue, is increasing).
Practical recommendations
Employers can strengthen their position by:
- reviewing job descriptions to ensure they accurately reflect actual duties;
- retaining evidence explaining why vacancies arise;
- documenting organisational changes that create new positions;
- maintaining up-to-date organisational charts;
- linking the need for a role to objective measures of increased demand, such as new contracts, increased revenue figures, etc.
How 3CS can help
The Home Office is increasingly interested not only in whether a role satisfies the technical requirements for the visa route, but whether the vacancy genuinely reflects the operational needs of the business.
By maintaining appropriate records and ensuring that sponsored roles can be clearly explained and evidenced, employers will be in a much stronger position should the Home Office request further information or conduct a compliance visit. As with many aspects of sponsor licence compliance, preparation is significantly easier than responding to questions after concerns have already been raised.
Our expert immigration solicitors can assist with these issues as well as all other matters relating to sponsorship and business visa applications. 3CS has one of the largest immigration consultancy teams in the UK – including 4 specialist immigration lawyers.
For assistance, please get in touch today.
