Tier 2, Tier 4 and common sense
1 September 2011
Readers familiar with this site will know that keeping up with the requirements for leave to enter or remain under the points based system is not easy. Four separate statements of changes in the Immigration Rules have been issued so far in 2011, and it isn’t even autumn yet.
Furthermore, it remains the case that the requirements are not to be found only in the Rules. The United Kingdom Border Agency (UKBA) continues to update its various policy guidance documents, notwithstanding the continuing uncertainty following the Court of Appeal’s judgment in Secretary of State for the Home Department v Pankina; Malieka & Others v Secretary of State for the Home Department [2010] EWCA Civ 719 as to whether or not requirements which feature in these documents can or cannot properly be regarded as comprising the law.
While Pankina was decided more than a year ago it seems that the scope of that judgment has not yet been fully understood.
Earlier this year in R (on the application of Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681 the Court of Appeal found that the requirement at paragraph 82 of Appendix A to the Immigration Rules whereby applicants for leave to enter or remain as Tier 2 (General) Migrants or Tier 2 (Intra-company transfer) migrants must do a job which was listed on "the United Kingdom Border Agency's list of skilled occupations”, was not and could not be lawful. This was because the list had not been published on the UKBA’s website when the statement of changes introducing this requirement had been laid before Parliament and, moreover, the UKBA could change the requirements at any time.
In doing so the Court overturned the Administrative Court’s judgment which had previously been regarded as demonstrative of the limits of the Pankina judgment. The judge who had refused the application for judicial review had said that the List was not an intrinsic part of the Immigration Rules and it did not require Parliamentary approval.
More recently, in Owolabi (Tier 2 – skilled occupations) Nigeria [2011] UKUT 00313 (IAC) the Asylum and Immigration Chamber of the Upper Tribunal applied the Court of Appeal’s judgment in Alvi in a case in which the Appellant had had his application for leave to remain as a Tier 2 (General) Migrant refused by the Secretary of State because he was not earning the stipulated minimum salary for the job which his Tier 2 Sponsor had said he was doing. Any job done by a Tier 2 migrant must be classified against one of the UKBA’s Standard Occupational Classifications (or "SOCs”). Each SOC carries a minimum hourly rate.
Among the Appellant’s arguments before the Tribunal was that he had been wrongly classified and his SOC would more appropriately have been attached to a professionally qualified person, which he was not.
However the Tribunal’s researches indicated that it was the applicant’s Tier 2 Sponsor, and not the UKBA, which bore the responsibility for choosing which SOC to match the applicant up with. Then the UKBA simply checked to see if the applicant was earning enough money for that classification. If he were not, the application would be refused.
This led the Tribunal to observe that:
"from a common sense point of view it might seem odd to leave entirely to a sponsor to choose the job type when there may be instances where sponsors seek falsely to represent that an applicant is doing a specific job on the UKBA list of skilled occupations just to help applicants.
Common sense, however, is not necessarily a feature that pervades the Immigration Rules dealing with the PBS system as we know it.”
Some people might say that the UKBA’s recent announcement, on 25 August 2011, that students awaiting International Baccalaureate qualifications can, until 15 September 2011, apply under Tier 4 for entry clearance or for leave to remain without submitting their award certificates is similarly bewildering.
The Agency updated its Tier 4 Policy Guidance, which applies to all applications made on or after 4 July 2011 to tell potential applicants that it was aware that the International Baccalaureate Organisation would not be producing paper documents showing the official confirmation of this year’s exam results until the end of August 2011 and it was therefore implementing this "concession”.
Basically the announcement was made on 25 August 2011, at which time there were only 6 days to go until the paper certificates were available anyway. The amendment to the policy guidance however states:
"Students may apply using this concession from 5 July 2011 until 15 September 2011.”
The existence of a concession with apparently retrospective effect which is announced shortly before it becomes unnecessary reflects what Lord Justice Longmore said about the difficulties facing people studying in the UK at the end of the Court of Appeal’s judgment in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 in July of 2010:
"I am left perplexed and concerned how any individual whom the Rules affect (especially perhaps a student, like Mr [A], who is seeking a variation of his leave to remain in the United Kingdom) can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves.”
Unfortunately confusion as to the requirements of the points based system can have very serious consequences for applicants and for their family members. Anyone considering making an application under any Tier of the points based system is strongly advised to seek professional legal advice. Gherson's immigration solicitors can assist you with your application.
