Do employers need to advertise before hiring a skilled worker?

Sponsor licence holders will be pleased to know that they are no longer required to actively advertise a role for 28 days, which was required under the old Resident Labour Market Test. However, licensed sponsors must still prove that there is a genuine vacancy in their organisation.

What is a genuine vacancy?

The Home Office demands strict compliance with the Immigration Rules from sponsors when hiring workers who require Skilled Worker visas. One such rule is that there must be a genuine vacancy in the sponsoring firm. For this reason, before hiring any overseas worker, sponsors must be able to prove that the vacancy they seek to fill is genuine and meets the requirements of the Skilled Worker route.

Proving the ‘genuine vacancy’ requirement

For the job to be deemed a genuine vacancy, it must:

• Be appropriate to the business model, business plan and scale;
• Require a jobholder to perform specific duties and responsibilities for which they are qualified;
• Not include dissimilar and/or predominantly lower-skilled duties.

Furthermore, the sponsoring organisation must avoid ‘reverse engineering’ vacancies. Vacancies that are not genuine include:

• Non-existent roles;
• Roles with exaggerated or incorrect job descriptions to make it appear that the role meets the visa requirements, when in reality it does not;
• A position created specifically for and tailored to a specific applicant;
• Advertisements which contain irrelevant skills and qualifications for the position, or are incompatible with the business’ activities, and have been tailored to exclude settled workers already in the UK.

Hiring relatives and family members While immigration law does not explicitly prohibit sponsors from hiring family members, certain restrictions apply. Importantly, the genuine vacancy requirement may attract greater scrutiny from the Home Office—especially proving that the position was not created solely to employ the family member. There are also reporting duties in relation to employing relatives and family members a business must ensure it complies with.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on Twitter, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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