Navigating “Genuine Vacancy” Rules in Skilled Worker Applications: A Practical Guide
A successful application for permission as a Skilled Worker must satisfy the “genuine vacancy” requirement among several others. Having a CoS issued by your employer does not mean the requirement has been considered or satisfied and nor does having a contract of employment or other proof the company wishes to engage your services.
Home Office guidance states an application will be refused if the vacancy does not exist, is a sham – the job is real but the worker won’t be doing it – or where the role has been created mainly to facilitate the application.
The first two don’t need much discussion as they are relevant only to dishonest applications. If a job doesn’t exist or the applicant won’t be doing it then that’s that. The application should be refused.
However, how can you show that a job has not been created “mainly” to facilitate the application?
Sponsored worker already in position
One of the most straightforward ways to satisfy the requirement is when the sponsored worker is already in position with a different visa – for example as a Graduate. In this case, the fact that they are in position, being paid and working in the role is good evidence that the role is genuine.
It does not automatically satisfy the requirement as the role could, theoretically, have been created to facilitate an application anticipated in the future but the longer the sponsored worker has been in position the stronger the application.
Existing role for a new hire
Similar to the above, if a long-time employee has left and the role will be filled by a sponsored worker then the long-time existence of the role is good evidence that it is a genuine vacancy. Employment records and staff lists can show that the previous worker in that role had worked for X years and, therefore, the role has not been created to facilitate the application.
Evidence will still be needed to show the role is required – for example that the team within which the role sits continues to operate but the long-time existence of the role is good evidence.
Book a consultation to discuss your UK sponsor licence compliance and visa strategy.
Resident labour market test
Whilst no longer a requirement it is good practice to keep and record all documents and responses relating to the hiring process. A role advertised in the proper location at a competitive salary is likely to be genuine IF the employer can demonstrate why the sponsored worker was, ultimately, offered the position. Records of CVs and interviews may be helpful to demonstrate that the sponsored worker was the best candidate or that other candidates declined the role before it was offered to the sponsored worker.
This is not a strict requirement but following the old requirements is helpful in demonstrating good practice and that the role is genuine and this should be considered carefully and records kept accordingly.
Large vs small companies
Larger companies have an inherent advantage in this area. A company with three expanding to a fourth is, relatively, an enormous increase. A company of 500 hiring their 501st employee is negligible and the vacancy is much more likely to go unscrutinised.
Smaller companies will, necessarily, need to demonstrate that the role is required for their ongoing growth and competitive position within their sector.
Start-ups and self-sponsored roles
New companies, even ones quickly bringing on employees, will need face greater scrutiny also. The Home Office will ask whether a company in its first year really requires a development manager or additional worker when clients and workflow are still being acquired or generated.
It is much harder, although absolutely possible, to show a position is required, and a vacancy therefore genuine, based on future projections of workflow than a long-standing company with consistent workflow requirements.
Turnover, profit and salary costs
A company which can readily afford the new hire is much more likely to have a genuine vacancy than one struggling to turn a profit or generate turnover. A company relying on capital investment to survive is less likely to have a genuine vacancy, in the Home Office decision matrix, than a company with profit sufficient to cover the additional salary requirements.
If profit and / or turnover cannot currently support the sponsor worker’s position then it must be clearly demonstrated, with credible projections, when the business will have sufficient income to meet its wage bill. Obviously there can be exceptions, at the extreme end, SpaceX is famously losing enormous sums but no one would suggest that a vacancy there would not be genuine. With everything, evidence is key and realistic and reliable projections can be used to substantiate these applications.
Family connections
Finally, a family connection between the sponsored worker and anyone in the business will create greater scrutiny. Bringing a family member to the UK to work in your business will need excellent evidence to demonstrate that the job is not simply facilitating the entry of the family member. Note also the absolute prohibition on a Level 1 User on the Sponsor Management System (SMS) from assigning a CoS to a close family member.
Look at the above points and, if there is a family connection, think how the rest of the evidence can show the vacancy is genuine – turnover and profits to cover the salary, a long-standing position where someone has recently left, advertising in the UK failing to find a suitable candidate, and the sponsored worker’s credentials and experience being suitable for the proposed position.
Conclusion and best practice suggestions
Overall, the newer the role, the smaller the company and the weaker the cash flow the more likely the position will be deemed not genuine. A family connection will increase the level of scrutiny and so too will the young age of the employer. Replacing a departing employee is much more likely to lead to a successful application in these high scrutiny cases opposed to expanding with a new role.
Keeping clear records of job adverts, applicants and interview / application processes will form the foundation of any genuine vacancy application. Business plans and market research can show why a new role is required. Existing work flow needs will always be stronger than future projections.
Applicants should be working with their employers to evidence this aspect of their applications. Do not rely only on the CoS or that the employer received a DCoS allocation.
