In the recent Court of Appeal case of R (Suny) v Secretary of State for the Home Department  EWCA 1019, it was held that the Secretary of State made an irrational decision in determining that the job vacancy available to the Appellant was not genuine. This case highlights the irrational approach taken by the Secretary of State Home in assessing the Tier 2 Genuine Vacancy requirement and it suggests that this requirement may be coming to an end or be reformed which could be an indicator as to the future of less stringent rules for the Tier 2 visa route and resident labour market test.
Background to the Tier 2 Genuine Vacancy requirement case:
The Appellant was a national of Bangladesh who was granted a Student Visa in December 2007. He extended his leave as a student on two occasions until his leave to remain was curtailed in July 2014, therefore expiring on 2 February 2015. The Appellant then made an application for further leave to remain on Article 8 Family and Private Life grounds on 2 April 2015; however this application was refused on 30 July 2015. On 12 August 2015, the Appellant then made an application for a Tier 2 (General) visa and biometric residence permit using the priority service. The Home Office sent a letter of acknowledgement of receipt of the application the following day. The decision was sent on 6 February 2017, refusing the application.
Facts to Tier 2 Genuine Vacancy requirement case:
The four refusal points were as follows:
- The Appellant did not have sufficient experience for the specified job role;
- The employer would have to train the Appellant which “makes little sense” given that the role itself entailed training junior staff;
- The employer failed to provide sufficient information as to why the Appellant was the most suitable candidate for the role; and
- The employer failed properly to explain the process of the recruitment procedure.
In short, the Home Office did not believe that the vacancy was genuine.
During the 18 months it took for the Home Office to reach a decision on the Appellant’s Tier 2 application, they raised some additional questions to the employer. The Home Office asked the employer for the Appellant’s full employment history both in the UK and overseas and also requested for full details. The Home Office also asked the employer to confirm whether the roles were full or part-time. The Appellant’s CV was provided with the application and furthermore, there was never disclosure between the Appellant and the employer so the employer only knew of the Appellant’s employment history from his CV. The Home Office then eventually refused the application for the above reasons and reaching the conclusion that the job vacancy was not genuine because the employer could not answer questions relating to the Appellant’s employment history beyond what was stated on his CV.
Furthermore, the wording of the job description given in the job advertisement was very similar to the wording of the SOC code for the specific job. The Home Office also used this as an unreasonable excuse to deem the vacancy disingenuous when in reality, Lord Justice Irwin accepted:
“…most employers will have job descriptions for their employees and vacancies which are drafted for jobs without reference to the Codes of Practice. The task will then be to check such a job description against that lay down. I accept that drafting in the way the matter was done here may rationally give rise to some concern. However, it also seems to me that [the lawyer for the Appellant] is correct as to the likely pressures on sponsors, who are not lawyers, and will not usually employ lawyers for purposes such as this, and who are anxious to ensure that the proper processes are followed. Without more, this degree of “mirroring” of text from the Code of Practice cannot, in my view, properly found a conclusion that the vacancy is not genuine.”
The judgement of the Tier 2 Genuine Vacancy Requirement case:
Lord Justice Underhill found in favour of the Appellant that the Home Office’s decision was highly irrational. The Home Office was seen to be looking for any reason to refuse the application and never once did they raise the question of genuineness with the Appellant or the employer at any point during which the application was being considered until the refusal letter was given.
The case will now be returned to the Upper Tribunal where permission to appeal will be and the Home Office decision will likely be withdrawn and remade.
Access the full judgement here: R (Suny) v Secretary of State for the Home Department  EWCA Civ 1019 | LEXVISA Solicitors and Barristers
What is the Tier 2 Genuine Vacancy Requirement?
In order for a migrant to come to the UK on a Tier 2 work visa (or apply from within the UK), one of the requirements that must be satisfied is to demonstrate that there is a genuine vacancy available. Under Appendix A of the Immigration Rules, it states that a CoS cannot be issued by a Tier 2 Sponsor Licence holder if there is not a genuine vacancy. A genuine vacancy for the purpose of a Tier 2 application means that the job role must not have been created specifically for the migrant and that it could be filled by a settled worker. For advice on the requirements for Tier 2 Sponsor Licence and Tier 2 (General) applications, please contact our specialist business immigration team who would be happy to arrange a consultation to discuss each individual case in further detail. We have a high success rate with Tier 2 applications and are ready to take any new enquiries.
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Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on the law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with a Tier 2 work visa application. Our Solicitors and Barristers will help you comply with the Home Office’s requirements and meet the Immigration Rules.
Caseworkers at the Home Office are trained to reject Tier 2 work visa applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Immigration & Visa application succeeds, our solicitors and barristers will ensure all specified documents must be provided.
The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
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