Increased Scrutiny on the Genuineness Requirements in Immigration Law

When making an application for a sponsor licence and sponsoring skilled workers into the UK, genuineness has always been one of the key requirements. However, there has recently been an increased emphasis on the genuineness requirement as evidenced by the increase in additional information requests relating to licence applications and Certificate of Sponsorship (CoS) requests, and specific changes to the rules regarding CQC regulation for sponsors providing care.

Ensuring Genuineness in the Sponsor Licence Application Process

The sponsor licence application is a key point during which the Home Office can scrutinise a business and its need for sponsored workers. The Home Office may come back requesting additional information or a pre-licence audit if there are any concerns regarding genuineness.

1. Hierarchy chart – One of the requirements of the licence application is to provide a hierarchy chart which outlines the structure of the business, current roles and employees as well as vacancies (including those intended for future sponsored workers). It is important that this chart accurately portrays the business structure and how sponsored workers would fit into this.
2. Legal Registration Compliance – Making sure the business is registered with any legally required governing bodies. If businesses are claiming to undertake regulated activities without the necessary governing body regulation, this could be a cause for concern and could lead to a refusal.
3. Third party contracts – If sponsored workers are going to be contracted out to third parties, this must be within the rules as outlined in the sponsorship guidance and this must be explained in the licence application with the necessary evidence. If sponsored workers work for third parties outside of the rules outlined in the guidance, this would indicate a lack of genuineness and could lead to suspension of a sponsor licence.

Demonstrating Genuineness When Requesting and Assigning Certificates of Sponsorship (CoS)

Requesting CoS, whether defined or undefined, can trigger additional scrutiny on genuineness in the form of additional information requests. This is especially true if a business suddenly changes the way they are requesting CoS, such as requesting large numbers or using SOC codes that vary significantly from previous patterns. 

Key considerations include:

1. Number of CoS being requested – If a new business requests a large amount of CoS or a small business suddenly requests a large number of CoS, this may indicate a lack of genuineness. The Home Office may ask the sponsor to explain why these additional workers are needed and to evidence this with work contracts/or evidence of work which the sponsored workers will be doing. Additional checks may be carried out for example checks on Companies House to see if the business has the necessary funds to cover the sponsorship fees.
2. Salary Compliance – Salaries must meet National Minimum Wage (NMW) regulations as well as minimum salary requirements. HMRC checks can be conducted to ensure workers are being paid appropriately. Salaries will be reviewed at the point of CoS request to ensure compliance.
3. Appropriate SOC Codes – Ensuring the role is in the most appropriate SOC code, in particular that the role has not been put in an alternative SOC code for the purpose of using a lower salary requirement.
4. Candidate Suitability – Ensuring the candidate is suitable and the best person for the role has the necessary knowledge and experience. You must be able to evidence the recruitment process and how you have evaluated the knowledge and experience of the successful candidates.

In summary, the emphasis on genuineness in the sponsor licence application and skilled worker sponsorship processes is more pronounced than ever. Businesses must ensure their applications and requests for CoS demonstrate clear, legitimate needs and compliance with all regulatory requirements to avoid scrutiny and potential refusal or suspension of their sponsor licence.