Tier 2 sponsorship – was it a genuine vacancy?

Many readers may be aware of or familiar with the Tier 2 sponsorship scheme. This scheme enables non-EEA migrants to work in skilled jobs for UK employers. Such migrants hold Tier 2 Skilled Worker visas – sometimes known under the older terminology as Work Permits.

Employers who wish to employ Tier 2 migrants have to hold a Tier 2 sponsor licence. Sponsor licences are jealously guarded by the Home Office, and indeed the whole Tier 2 structure is very strictly governed. It is not so easy for employers to navigate their way through the system and they may easily fall foul of the myriad Home Office rules.

When Tier 2 issues have been challenged by disgruntled parties in the courts the courts have often stuck up for the Home Office. They have generally taken the view that the Home Office is entitled to have strict and prescriptive systems for the legitimate purpose of controlling immigration.

But sometimes things go the other way. Recently in the Court of Appeal Mr Rahman Suny did well. He is a Bangladeshi national and he held a Tier 4 student visa. Then he applied to switch from Tier 4 student to Tier 2 General Skilled Worker. He had been offered a job and sponsored by Zamir Telecom Ltd as a Sales Account and Business Development Manager.

But the Home Office refused Mr Suny’s visa application, on the basis that the vacancy was not “genuine”.

A general atmosphere of dysfunctionality hung over this case. Mr Suny, wanting a quick decision, had applied under the “Tier 2 Priority Service” – for which he paid an enhanced fee. Under this scheme applications should have been decided within ten working days. However, it took the Home Office nearly 18 months.

As the Court of Appeal put it: “No explanation has ever been given for the extraordinary delay; and it is disappointing that the Secretary of State has offered no apology for it.”

 Well quite so but, in any event, the Home Office, in support of its contention that the vacancy was not genuine, pointed out that Mr Suny, although he had a strong academic background, had very limited relevant experience for the proposed position.

And also that the job description provided by Zamir Telecom Ltd followed very closely the standard job description published on the Home Office website for that particular kind of job. This the Home Office regarded as suspicious, because it looked to them as though the job description had been tailored to “look right”, rather than describing a real or genuine position.

To put it very short: the Home Office in such cases accuses employers – either directly or by implication – of attempting to sponsor a migrant just because for some reason they like them.

This confirms a feeling, or instinct, that we have held for some years: Tier 2 employers are well advised not to follow published job descriptions too slavishly, because in the eyes of the Home Office it undermines the credibility of the application.

And the Home Office also adopted another tack, which was related to Mr Suny’s relative lack of experience. In fairness to the Home Office, it was true – he did have a relative lack of experience. But they developed this theme a bit further. In their refusal decision they said:

“Zamir Telecom Limited have failed to provide sufficient justification as to why they deemed you the most suitable candidate for the role. If the role is one that required training Zamir Telecom have failed to explain why a resident worker couldn’t have been trained to undertake this.”

 And here we get into deeper waters. Are Tier 2 sponsored employers who want to employ a Tier 2 migrant required to show that they could not find a suitable person from the resident workforce? Well, generally yes. In many cases the employer is required to carry out a resident labour market test (“RLMT”): ie advertise the position in suitable places, carry out a recruitment exercise, and justify their choice of the Tier 2 migrant as the best candidate.

But there are some exceptions to this principle. Migrants who, like Mr Suny, apply to switch from Tier 4 Student to Tier 2 Skilled Worker are not subject to this RLMT requirement and the position does not have to be advertised.

The Home Office decision-maker did not appear to hold this legal reality firmly in their mind when they made the decision. The words “the most suitable candidate for the role” rather imply that there would have been some other candidates, but bearing in mind that there was no requirement to advertise the position this would not be obviously so.

This does not mean that a Tier 2 employer can just plough ahead and sponsor any Tier 4 student they like. There is the “genuine vacancy” requirement, which is defined by rules – and which Mr Suny fell foul of.

But the court decided that the Home Office reasoning had not been very sharp, and not just on the issue of the RLMT. It held that the Home Office had generally gone outside the terms of its published rules. As we all know, rules for the points-based system are supposed to be precise and prescriptive. If they strictly bind migrants they must also strictly bind the Home Office.

This was a very interesting point, and Mr Suny succeeded and his case was remitted back to the Upper Immigration Tribunal for further consideration. It is possible that he may now ultimately get the visa.

And if you get yourselves tangled up in one of these tricky Tier 2 issues you are well advised to consult a good lawyer.