High Court considers whether a vacancy is “genuine” in the context of a sponsor licence revocation

After a thorough analysis on this point, employers must now consider a new ‘two-part framework’ for assessing the genuineness of sponsored roles.

The “genuine vacancy” test

The Home Office may examine whether a role is a “genuine vacancy” when deciding visa applications for to come to the UK or to extend a stay in the UK, and also during compliance visits, information requests or investigations.

Home Office guidance defines a genuine vacancy as one that:

• Requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
• Does not include dissimilar and/or predominantly lower-skilled duties
• Is appropriate to the business in light of its business model, business plan and scale

Examples of vacancies that are not considered to be genuine include, but are not limited to:

• A role that does not actually exist
• One which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route when it does not, or is otherwise a sham
• A job or role that was created primarily to enable an overseas national to come to, or stay in, the UK
• Advertisements with requirements that are inappropriate for the job on offer (for example, language skills which are not relevant to the job) or incompatible with the business offering the employment, and have been tailored to exclude settled workers from being recruited

Is dishonesty required?

This case followed the Court of Appeal’s decision in R (Prestwick Care) v SSHD which was that there is no duty to conduct an impact assessment before revoking a sponsor licence. In a linked case brought by Supporting Care, the Court of Appeal found that the Home Office acted unlawfully in concluding that the care operator had acted dishonestly and had followed an unfair process to reach that conclusion.

Prestige was a specialist care provider who had its Skilled Worker sponsor licence revoked in October 2024. The Home Office cited three areas of concerns namely:

1. A sponsored worker whose visa application had been refused;
2. Another worker who was hired for a driving role even though she had stated in her job application that she could not drive; and
3. Staff turnover being over 40%.

The Home Office’s position was that, as a result of the above 3 concerns, it was entitled to find that the roles were not genuine. Prestige’s position was that dishonesty or other reprehensible conduct is required in order for there to be a finding that a vacancy is not genuine.

In this case, the High Court concluded that the focus for the Home Office should be on the job and not the worker and that if a role fails to meet the requirements in the guidance (set out above), a vacancy can be “not genuine” even if there is no element of deception or dishonesty. In essence, there are now two ways for a role to be judged “non-genuine”. This can happen either when the Home Office says the role fits one of the specific examples they identify, or when the role does not meet the general definition. In either situation, dishonesty does not need to be proven.

How does this affect licence holders in the care sector?

The care sector continues to be a prime target for Home Office compliance action and this case will not slow it down.  Employers must carefully consider the genuine business need for each role they intend to assign a Certificate of Sponsorship to and be prepared to evidence this through the appropriate documentation.  We are also seeing a high level of information requests when requesting increased allocations of Undefined CoS and the genuine vacancy test being relevant when deciding these. Providers should ensure that they are ready to defend challenges from the Home Office on this point, even when seeking to assign CoS to existing employees.

If you would like support in considering what the impact may be on your business, please get in touch.