The recent expansion of the ‘genuineness’ test in the UK Immigration Rules has sparked discussions and raised concerns among experts in the field.
This new requirement, added to many of the Points-Based System work routes, places the burden on applicants to demonstrate their genuine intention and ability to undertake the sponsored role, while also refraining from seeking employment outside the sponsored role unless permitted by their leave to remain.
In this blog post, we will explore the potential implications of these changes and examine their impact on applicants and the wider immigration system.
The Erosion of Discretion in the Points-Based System:
One of the immediate reflections on these changes is the further erosion of discretion in the immigration process. The Points-Based System, by its nature, operates on a rigid framework determined by points allocation.
The addition of the ‘genuineness’ test brings a subjective element into the system, requiring applicants to demonstrate their intentions and focus solely on the sponsored role.
This can be seen as a departure from the original intent of a points-based system that sought to provide clarity and objectivity in visa applications.
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Increased Burden on Applicants:
The introduction of the ‘genuineness’ test places an additional burden on applicants to prove their intentions and eligibility for the sponsored role.
Alongside the existing requirements, such as evidencing qualifications and experience, applicants now have to provide further insight into their mindset and career aspirations. This may involve articulating their motivations, career plans, and alignment with the sponsored position. The test introduces a subjective element that can be challenging to navigate and satisfy, potentially causing anxiety and uncertainty for applicants.
Distinction Between ‘Genuine Vacancy’ and ‘Genuineness’ Test:
It’s important to distinguish the new ‘genuineness’ test from the existing ‘genuine vacancy’ requirement in the Sponsor Guidance. While the ‘genuine vacancy’ test primarily assesses the authenticity and necessity of the specific job position, the ‘genuineness’ test focuses on the applicant’s intentions and their commitment to the sponsored role.
The former is determined during the sponsor’s decision-making process, whereas the latter places the onus on the applicant themselves. The expansion of the ‘genuineness’ test adds an additional layer of scrutiny to visa applications, potentially creating a more arduous process for applicants and sponsors alike.
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Impact on Skilled Worker Applications:
From 7th August 2023, these changes will grant the Home Office the ability to refuse skilled worker applications based on issues encountered during the ‘genuineness’ assessment.
This signifies a significant shift in the decision-making process, granting the Home Office more authority to deny applications if an applicant is unable to satisfy the ‘genuineness’ test.
It remains to be seen how the Home Office will interpret and apply this expanded requirement, and whether it will result in increased refusal rates or a more rigorous vetting process.
Conclusion:
The recent expansion of the ‘genuineness’ test in the UK Immigration Rules has sparked debates regarding its impact on the immigration system.
Critics argue that these changes add a subjective element to a points-based system and place an increased burden on applicants to prove their intentions and eligibility.
It is crucial for applicants to be well-informed and seek professional advice when navigating these new requirements.
As we move forward, it will be interesting to observe how these changes unfold and their effects on skilled worker applications, providing valuable insights into the evolving landscape of UK immigration.
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