Sponsor compliance – genuine vacancy requirement

Jul 30, 2021

Due to changes in the Immigration Rules effective from 1 December 2020 regarding sponsor compliance, organisations are now required to provide their PAYE reference number on every Certificate of Sponsorship they assign to migrant workers.

This is part of UKVI’s aim to modernise, improve and broaden how it delivers assurance. It is also an exercise to validate sponsored worker salaries and an important change in compliance practices that the Home Office are to conduct from now on.

The Home Office may contact HMRC to conduct checks or get in touch with sponsors to request the following documents and compliance information for sponsored workers:

  • Evidence of monitoring sponsored workers’ immigration documents and their entitlement to work
  • Ensuring that sponsored workers are undertaking the roles for which they were granted permission to be in the UK
  • Adhering to sponsorship duties, as defined in the Workers and Temporary Workers: guidance for sponsors
  • Retaining relevant documents, as specified in Appendix D of the guidance
  • Payslips for some or all sponsored workers.

If the required information is not provided, then non-compliance actions can be conducted which could result in the suspension or revocation of the licence.

It is therefore essential that all sponsor compliance duties, record keeping, and reporting duties are adhered to.

Sponsor compliance - genuine vacancy requirement

compiled by Judit Adorjan – Immigration Consultant

Evidence of the genuine vacancy requirement

Another important change in the immigration rules was the abolishment of the formal resident labour market test.

Section SW5.5 of Appendix Skilled Worker states that “the decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do:

  1. Does not exist; or
  2. Is a sham; or
  3. Has been created mainly so the applicant can apply for entry clearance or permission to stay.”

Therefore, to meet the genuine vacancy requirement sponsors must still retain evidence of any recruitment activity undertaken or if the role has not been advertised must be able to explain how the worker has been identified as suitable.

Where the role has been advertised the following should be kept on file:

  • A screenshot, printout or photocopy of the advert or a record of the text of the advert; and
  • Information about where the job was advertised (for ex. website address) and for how long.

There is no specified minimum number of adverts or prescribed method of advertising. Where more than one advert was placed, it is recommended to retain evidence of all adverts placed.

  • A record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process
  • At least one other item of evidence or information which shows the process you used to identify the most suitable candidate:
    • A copy or summary of the interview notes for the successful candidate
    • A list of common interview questions used for all candidates
    • Brief notes on why the successful candidate was selected and why others were rejected
    • Information about any scoring or grading process used to identify the successful candidate.

Application forms, CVs and interview notes for unsuccessful candidates do not need to be retained.

If the role has not been advertised the sponsor must be able to explain how the worker was recruited.

Examples given in Appendix D include but are not limited to the following:

  • The worker has been identified through a university milk round – evidence of this must be retained
  • The worker has already been legally working for the sponsor on another immigration route, and they were suitable for the role through their previous performance
  • A speculative application has been received from the worker, outside a formal advertising campaign and the worker had the necessary skills and experience to do the job (this transpired during the interview or reference/qualification checking process).

How long should documents be retained for?

All documents relating to a worker or student must be kept throughout the period that they are sponsored for an until whichever is earlier:

  • One year has passed from the date on which sponsorship is ended
  • The date on which a compliance officer has examined and approved, if this is less than one year after the sponsorship ended.

Evidence relating to right to work checks must be kept for a further two years after the employee stops working for the sponsor.

Immigration Advice from UK Immigration Law Experts

If your sponsor licence application has been recently approved and you would like to find out more about sponsor compliance, we offer various services.