Employment Law Update - Certificates of Sponsorship – importance of job description


27 November 2018

The High Court has reminded sponsors that migrants must only be sponsored to fill genuine vacancies that are skilled to at least RQF level 6. If audited by the Home Office, sponsors need to be able to provide evidence of the work actually undertaken by employees.

R (Liral Veget Training And Recruitment Ltd) v Secretary of State for the Home Department [2018] EWHC 2941 (Admin)

Facts

Liral Veget Training (the company) sponsored four migrant workers, as a Human Resources Manager, Accountant and two Business Development Managers.

The Home Office carried out an unannounced inspection and interviewed the director of the company and the four sponsored workers. Each employee was asked to provide a description of the role they were performing. Their replies bore little resemblance to the job descriptions on their Certificates of Sponsorship (CoS). Although they had all been sponsored for managerial positions, they appeared to be working at a more administrative level.

The inspector concluded that the job descriptions on the CoS were exaggerated or incorrect and amounted to false representations of the roles. The company’s sponsor licence was suspended and they were invited by the Home Office to submit evidence of the duties actually performed by the sponsored migrants.

When they failed to provide satisfactory evidence that the jobs were as described on the CoS, the company’s sponsor licence was revoked. The company applied for judicial review, to quash this decision.

High Court decision

The High Court found that the Home Office was entitled to conclude that the actual jobs performed by the four employees were significantly different from the descriptions in the CoS.

The Judge, Mr Andrew Thomas QC, noted: “As a holder of a sponsor licence, the claimant was required to be scrupulously accurate in the information to be provided in the CoS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise.” He also reminded us that “The licence is a privilege not an entitlement.”

The Tier 2 sponsor guidance provides for mandatory revocation of the sponsor licence if the sponsor has “knowingly provided false statements or false information” and/or if the sponsor has used “an exaggerated or incorrect job description to deliberately make it appear to meet the requirements for the tier and category you assigned it under when it does not.”

In the circumstances it was reasonable for the Home Office to revoke the company’s sponsor licence.

Consequences

Tier 2 sponsors must be careful to only assign CoS for genuine vacancies, where the role falls within a SOC code that is deemed to be skilled to RQF level 6. Furthermore they must ensure that the job description included in the CoS accurately reflects the work the migrant will be doing. Sponsors must avoid inflating the scope of a role, in order to make it eligible for sponsorship.

If a migrant’s role changes over time, this must be reported to the Home Office. Minor changes, within the same SOC code can be notified through the Sponsor Management System. More significant changes, such that the role now falls within a different SOC code, will trigger a requirement for a new visa application.

The Home Office may carry out an unannounced inspection at any time, and sponsors should prepare employees for the fact that they may be interviewed by Home Office officials. Sponsored workers should be able to talk confidently about the work they are doing and should be aware of the job description in their CoS. If necessary they may be required to provide evidence of their work. 

Home Office officials usually ask for interview notes to be signed. It is then very difficult to dispute what was said. Sponsors and employees should not feel pressured into signing notes until they have had a proper opportunity to review them and correct any errors or missing information. They should always take a copy of the notes before the official leaves.

For further information please contact Clare Hedges or Janice Leggett in our Immigration Team.

This article is from the November 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at November 2018.

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