What is a ‘genuine vacancy’ in the Skilled Worker visa?
The ‘’genuine vacancy’’ test applies to applications for leave to enter or leave to remain as under the Skilled Worker visa route.
To employ a foreign worker in the UK, the employer must be a sponsorship licence holder. Sponsor licence application is the first step in the Skilled Worker visa process.
As part of the Licence and Skilled Worker application, the employer must be able to show that the vacancy they are trying to fill is genuine.
In the past, employers were subject to the Resident Labour Market Test. This was abolished in December 2020. The requirement was a part of the old Tier 2 General scheme. The new Skilled Worker has replaced the previous Tier 2 worker program in response to the changes of certain immigration route as well as the UK ending the free movement following Brexit.
To sponsor an overseas worker, the employer must have a ‘’genuine vacancy’’ for the position. The employer must how they have a genuine requirement to sponsor the employee from overseas as oppose to employing someone from a local labour market. The Home Office will consider whether that particular role exists in the business. There are times when a employer creates a role for a overseas national when there is no actual need. The Home Office will make enquiries until they are confident the role was not specifically created for that particular individual. The authorities will look at various documentation such as the job description, individuals qualifications and CV to assess whether they are suitable for the role.
An employer can prove a ‘genuine vacancy’ by explaining how they recruited that overseas employee. If the job was advertised they can prove this by showing the advert, where and when it was based, how many candidates applied, why there were not suitable and why the proposed skilled worker is the best person to fill the advertised role.
The employer also needs to ensure that a record is kept of all the other candidates that were interviewed and the reasons why they were not suitable for the role. The Home Office can request to see the Interview questions and the system to identify which candidates were successful. CV’s of all the candidates should be kept on file along with any interview notes.
If you have any questions about employing overseas worker in your business, contact our Immigration Solicitors at Taylor Hampton on 0207 427 5970 or email us: [email protected]