Where a company sponsors a worker from overseas to fill a vacancy in the UK they must only do so if that vacancy is “genuine”.

The case of R (Suny) v SSHD [2019] EWCA Civ 1019 arose from a disagreement between a sponsored worker and the Home Office about the genuineness of a vacancy that a sponsoring company was attempting to fill.

Unusually in this case, the Court of Appeal agreed with the visa applicant that the Secretary of State had crossed the “notoriously high” irrationality threshold in deciding that no genuine vacancy existed.

A “genuine vacancy”

The Home Office can refuse a Tier 2 visa application if it believes that the job recorded on the Certificate of Sponsorship is not a “genuine vacancy” (Immigration Rules, Appendix A, paragraph 77H). The Certificate of Sponsorship, or CoS, is issued by the sponsoring company.

The meaning of “genuine vacancy” is set out in the Immigration Rules as one which:

(a) Requires the jobholder to undertake the specific duties and responsibilities, for the weekly hours and length of the period of engagement, described by the Sponsor in the Certificate of Sponsorship relating to the applicant; and

(b) does not include dissimilar and/or unequally skilled duties such that the Standard Occupational Classification (SOC) code used by the Sponsor as stated in the Certificate of Sponsorship relating to the applicant is inappropriate

This means that employers need to make sure the position for which they are hiring includes skills and duties that match the appropriate code listed in the government-approved Standard Occupation Code classification.

So basically, if you were sponsoring a skilled classical ballet dancer under SOC code 3414 (Dancers and Choreographers), they couldn’t be put to work designing foundations and earthworks (a task for Civil Engineers, code 2121).

Suny-side up?

After his student leave was curtailed, and a subsequent human rights application was refused, Mr Suny was offered a job as a sales account and business development manager.

The role fell under SOC 3545 (sales account execs and business development managers). This is the Billy no-mates of SOC codes, and (one suspects) regularly on the edge of what the Home Office considers sufficiently skilled to qualify under the Tier 2 visa regime.

As Mr Suny had previously been a Tier 4 student he was able to rely on the applicable exemption from the Resident Labour Market Test (where the sponsoring company has to advertise to workers already in the UK) for those switching into Tier 2. No advertising to local workers was needed as a result.

This also meant Mr Suny was invited to join as a “new entrant”, which meant he could be paid a lower salary than someone who was more experienced in the role, and which was appropriate given that, although he had a relevant degree, he had almost no marketing work experience to speak of.

To cap off this red-flagging exercise, the job description (which is set out in the Certificate of Sponsorship) had also been almost entirely lifted from the Standard Occupation Classification code mentioned above, right down to the job title itself.

The refusal

As agreed by both sides, the main points of the refusal were as follows

1. the Appellant did not have sufficient experience for the role entailed;
2. the employer would have to train the Appellant which “makes little sense” given that the role itself entailed training junior staff;
3. the potential employer failed to provide sufficient information as to why the Appellant was the most suitable candidate; and
4. the employer failed properly to explain the process of recruitment followed

As the court found, the problem with the Home Office decision was that it had nothing to do with the genuineness of the vacancy.

The Home Office appears to have decided that there was something fishy going on, and then tried to shoe-horn a refusal decision into one of the available subjective provisions that it keeps lying around in the Immigration Rules.

Further Home Office complaints spilled out within the administrative review process, including that

• no attempt had been made to recruit a worker from the resident labour market; and
• the advert wording had been copied to a large extent from the SOC code

But of course, as the court pointed out, the position was not subject to the RLMT, so no advertising was required to try and recruit local labour.

And as for the wording of the advert (something practitioners often advise clients upon when creating the job descriptions in these cases), Lord Justice Irwin helpfully accepted

that 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 laid 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 Mr. Suny] 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 court accepted that the decision of the Secretary of State was irrational, which is unusual.

The case now returns to the Upper Tribunal where permission will be granted for permission to appeal – it was previously refused – and the Home Office decision will presumably be withdrawn and remade.

Supporting a “flexible labour market”?

Mr Suny made his original Tier 2 application on 12 August 2015. As many of you will be aware, it is now June 2019.

The Home Office comes in for some stick for the 18 months it took to arrive at a decision, especially given that Mr Suny paid for priority service (with supposed turnaround of the application in 10 working days).

And yet, almost an entire Olympic cycle later, his case is not resolved. It will now go back to the Home Office, via the Upper Tribunal which originally refused him permission to pursue judicial review, for a fresh decision to be made.

Although the Home Office would point to the rarity of delays in decision-making experienced here, an 18-month turnaround is not a good look for the “flexible” and “business friendly” work visa system promised in the immigration white paper.