We are writing to advise you of some recent changes to Tier 2 which have been brought into effect via a Statement of Changes to the Immigration Rules published on 16th October (HC 693). The changes are effective from 6th November 2014.
One of the biggest changes with regards to Tier 2 is the introduction of a “genuineness” test. Essentially, the Statement of Changes specifies that Entry Clearance Officers and caseworkers will now be able to refuse Tier 2 applications where there are realistic grounds to believe that the job does not genuinely exist or has been exaggerated to meet the Tier 2 skills threshold (currently NQF level 6). They may also refuse applications if they feel the migrant is not qualified to do the job or that the position has been tailored to exclude resident workers from being recruited.
In situations where the migrant is not yet properly qualified or registered to do the job in question, he or she must provide evidence that he/she can reasonably be expected to obtain the appropriate qualifications or registrations by the time they begin their UK employment or again risk refusal.
The up-dated policy guidance states that a genuine vacancy is one which:
a) 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 a CoS has already been assigned then the vacancy must be for the duration of the CoS; and
b) does not include dissimilar and/or lower-skilled duties.
The Home Office may request additional information and/or evidence from employers or the migrant themselves to establish this requirement, and may refuse the migrant”s application if this information is not provided or is inadequate.
The guidance goes on to set out some examples of vacancies that are not considered to be genuine including:
· ones 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;
· those 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.
The implications of these changes are that we expect the Home Office to apply greater scrutiny to CoS applications where a Resident Labour Market Test has been conducted. For employers/sponsors this means that extra attention will need to be paid to the wording of adverts when meeting the RLMT – particularly when, as is often the case, you already have a candidate identified for the role. It will be imperative that the RLMT is not overly specific so as to exclude potential candidates from the resident workforce. Full and detailed records of the RLMT process and the candidates who responded will need to be maintained.
We also anticipate that more scrutiny will be applied by Entry Clearance Officers and caseworkers to the job description on the CoS, in conjunction with the migrant”s skills and experience. Job descriptions will need to be far more detailed and specific, and job titles will need to be accurate to reflect the seniority of the role. We will of course continue to advise you on a case-by-case basis with regards to migrants meeting the criteria for the role, but we will need to ensure that roles fit squarely within a level 6 SOC code (where necessary) and that a real vacancy exists within the UK business to ensure that applications are successful. Going forward advice on Tier 2 applications will have to be very case specific taking into account full circumstances as the criteria for assessment is no longer objective or tick box.
Tier 2 ICT applications will also need to meet the new “genuine” test with applicants for Tier 2 ICT visas having to prove that the vacancy recorded on the CoS is indeed genuine, as applications may now be refused where grounds exist to believe otherwise. Entry Clearance Officers will also now be able to refuse applications where they feel that the applicant is not appropriately qualified to do the job in question. The terminology used here is rather odd as historically the criteria for an ICT is that they are not filling a vacancy within the UK, but nevertheless sponsors will therefore need to ensure that the need for the assignee to work in the UK is entirely justified and for the good of the business.
It appears that the reason behind this significant change is due government pressure to reduce net immigration further. By bringing back these subjective tests which a reminiscent of the old work permit days, along with the possibility of applicants being interviewed, the process is likely to become more challenging.
If you have any questions or wish to discuss these changes further, please contact us.