Tier 2 visas: employers must be "scrupulously accurate" when describing the job

Liral Veget Training and Recruitment Ltd, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2941

The High Court recently upheld the Home Office’s decision to revoke a company’s Tier 2 sponsor licence after the Home Office had concerns job descriptions had been drafted to exaggerate the skill level of sponsored roles.

In this case the company received a fairly standard unannounced compliance visit from the Home Office. Among other routine checks, the government's compliance officers reviewed job descriptions and Certificates of Sponsorship (CoS) for four Tier 2 sponsored roles, and later interviewed each Tier 2 employee individually. The Home Office was concerned that these four roles were not at the required skill level for Tier 2 sponsorship and that the skill level presented on each respective CoS was not an accurate reflection of the job. The concerns were compelling enough for the Home Office to suspend the sponsor licence after the visit, and ultimately led to the Home Office revoking the licence. After a judicial review by the employer, the High Court agreed with the Home Office’s revocation decision. The Home Office places a high degree of trust in registered sponsors to ensure sponsors correctly apply its immigration policies, and the Court believed the Home Office acted fairly in deciding the business was not meeting its sponsor obligations.

What is a "skilled" role?

A sponsor licence is a permission from the Home Office for a UK business to recruit non-EEA nationals in skilled roles when the employer is unable to recruit locally. For Tier 2, roles must meet the minimum skill level of Regulated Qualifications Framework (RQF) Level 6 or above.

Sponsors can view the publicly available Codes of Practice published by the Home Office which lists various occupations. Each published occupation, tied to a four digit Standard Occupational Classification (SOC) code, is matched against an RQF Level and also has a minimum salary requirement. Before moving forward with Tier 2 recruitment plans, sponsors should determine at an early stage whether the job description it drafts for a proposed role is accurate and whether the proposed role falls under a SOC code eligible for Tier 2 sponsorship.

The High Court confirmed that Tier 2 roles cannot include lower-skilled duties, which can be frustrating for smaller organisations where all members of staff can regularly help with more administrative and routine tasks.

What happens if sponsors breach their sponsor obligations?

The Home Office imposes numerous reporting, monitoring and record-keeping duties on sponsors. They conduct compliance visits, often to check that the sponsor system is not being abused. These visits are usually unannounced, with no prior warning.

Should they find material or repeated compliance breaches, the Home Office has the authority to suspend or revoke sponsor licences. It is usually not possible to rectify a licence revocation without a judicial review claim through the courts, taking many months at large cost (and which may ultimately be unsuccessful as with the recent High Court case). The courts view their role as supervisory, and therefore tend to trust the Home Office's experience in these cases.

A licence revocation will automatically curtail all sponsored visas tied to the licence. This would affect all sponsored workers, including those sponsored visa holders whose roles have not been investigated or connected to any compliance breaches.

Preparing for a sponsor compliance visit

It is crucial that Tier 2 sponsors are prepared for a Home Office compliance visit at all times whilst it holds a licence. This includes ensuring that:

• All Tier 2 sponsored roles meet the required skill level and each sponsored role is accurately reflected on the respective CoS and job description (and updates are made when changes happen).
• All UK personnel files (which can be stored either electronically or in hard copy) are up-to-date. Home Office guidance sets out full sponsor duties and lists in Appendix D documentation sponsors must store, which includes 'right to work' documentation for all UK-based employees.
• They have appropriate HR systems in place to meet its sponsor obligations. This includes reacting to a change(s) to a sponsored worker’s CoS terms or to business circumstances. Most changes will usually trigger an action point. Action points for a change to CoS terms can vary from a simple online notification, to applying for fresh sponsorship and a new visa.
• If questioned by the Home Office, sponsors should be able to provide examples of a sponsored migrant's work. The fact that the company in this recent High Court case was unable to provide evidence of work that corroborated the job descriptions formed one of the reasons why the Court agreed with the Home Office's decision.

Sponsor licence suspension and revocation can have damaging ramifications to a business, including staff resourcing and reputational damage. We recommend that sponsors regularly conduct internal audit health checks to ensure adequate preparation and seek legal assistance if required.

Return to contents page