Suny, R (on the application of) v The Secretary of State for the Home Department

For a sponsored employment application, a genuine vacancy must exist in practice with the duties, hours and duration stated by the sponsor, and its duties must fit the stated occupational code. This inquiry is distinct from the applicant’s qualifications and from the Resident Labour Market Test.

Lack of direct experience or the need for training may support an adverse inference only in a stark case, such as absence of an essential qualification or evident unsuitability. Similarity between a job description and the occupational code may create concern, but cannot alone establish that the vacancy is not genuine. The Secretary of State must tie the reasoning to the Rules and reach a rational conclusion on the evidence. No finding of deception is required.

The appellant, a Bangladeshi national, applied for further leave to remain as a Tier 2 (General) migrant. His application relied on a Certificate of Sponsorship for a sales accounts and business development manager role. The Secretary of State refused the application under paragraph 77H(a) of the Immigration Rules, finding reasonable grounds to doubt that the vacancy was genuine. The reasons included the appellant’s limited experience, the need for training, the sponsor’s recruitment explanations and similarities between the job description and the relevant occupational code.

Administrative review upheld the refusal. Upper Tribunal Judge Kopieczek refused permission to apply for judicial review on 5 December 2017. The central issue before the Court of Appeal was whether the Secretary of State had rationally applied the genuine-vacancy requirement, including whether matters concerning applicant suitability and resident workers were relevant.

1. Disposition. Irwin LJ, with whom Underhill LJ agreed, allowed the appeal. The formal consequence was that permission to apply for judicial review was granted and the substantive proceedings were to continue. The Secretary of State’s decision was expected to be quashed.
2. Meaning of genuine vacancy. Paragraph 77H(a) of the Immigration Rules concerns whether the vacancy exists in practice for the specified duties, hours and period of engagement, and whether the duties fit the stated SOC code. Paragraph 77H(b) separately concerns whether the applicant is appropriately qualified or registered. Paragraph 77H(a) is not a proxy for paragraph 77H(b).
3. Experience and training. An offer to a manifestly unqualified applicant may support an inference that a vacancy is not genuine. However, where that is the sole basis for refusal under paragraph 77H(a), the facts must be stark, such as absence of an essential qualification or experience or evident unsuitability. The Code’s recognition of new entrants made the appellant’s lack of direct experience and need for training insufficient on these facts.
4. Resident workers and job description. Whether a resident worker could have been trained was relevant to the Resident Labour Market Test, not to genuineness where that test did not apply. The sponsor had not been asked to explain why it recruited a non-resident. Similarity between the job description and the Code of Practice could create concern, but without more could not rationally establish that the vacancy was not genuine.
5. Rationality and the Points-Based System. The decision was based on a concatenation of concerns which did not directly address the paragraph 6 definition and which mixed distinct grounds of refusal. The Rules did not require proof or consideration of a threshold of deception, but the Secretary of State still had to reach a rational conclusion within the Rules’ parameters. The need for predictability and clarity in the Points-Based System reinforced that requirement, as explained in Alvi v SSHD [2012] UKSC 33.
6. Additional observation. Underhill LJ observed that, although the Points-Based System is designed to operate as far as possible on a tick-box basis, some assessments may require more sophisticated evaluation and further enquiries. He regarded the unexplained delay of almost 18 months, after payment for a priority service, as extremely regrettable.

• Court of Appeal (Civil Division): [2019] EWCA Civ 1019. Allowed the appeal against the refusal of permission and directed that the substantive judicial review proceedings proceed.
• Upper Tribunal (Immigration Appeals Chamber): Upper Tribunal Judge Kopieczek refused permission to apply for judicial review on 5 December 2017.