Richmond Canter Immigration Barristers

The Government should switch to a more rational method of measuring student migration flows and only count students who stay on in the UK permanently in net migration figures, according to a new report published by the think tank IPPR.

IPPR’s report argues that the current method of measuring student migration flows gives the Government a perverse incentive to cut international student numbers in the short term, rather than focusing on what it states is its real aim: reducing long-term net migration. Only around 15% of students stay permanently and contribute to long-term net migration.

IPPR’s analysis suggests that the current method of measuring student migration flows provides the Government with an opportunity to “game” its own 2015 net migration target by reducing the number of genuine international students coming to the UK in 2012-14. Although this would have little impact on real long-term net migration - because most students do not stay long-term - it would have a significant short-term impact on the target.

The report shows that planned Government reductions in student migration would cost the UK £2-3bn a year in economic contributions from the loss of 50,000 students per year while having only a small impact on long-term net migration.

The report recommends that the Government switch to a more rational method of measuring student flows, which would give a true picture of the trade-offs between controlling long-term net migration and the benefits of international students to the economy and the education sector.

The United Nations Special Rapporteur on the human rights of migrants, François Crépeau, will undertake a one-year comprehensive study to examine the rights of migrants in the Euro-Mediterranean region, focusing in particular on the management of the external borders of the European Union.

The study will include an examination of the EU directives and national policies in place with respect to visa regimes and border control. It will also assess management policies and practices, interception practices including on land and at sea, detention regimes and conditions, returns and readmission.

“Although migration to and from the European region is not a new phenomenon, since the 1990s the region has witnessed a sharp increase in migration movements,” noted the independent expert, reiterating his call to the international community “to embrace a new, balanced discourse on migration based on equal rights, non-discrimination and dignity, as well as on reality.”

The project will culminate in a thematic report which will be presented to the UN Human Rights Council in June 2013.

Non-EU seasonal workers would enjoy basic working and living conditions, such as a minimum wage and decent accommodation, under draft legislation endorsed by the European Civil Liberties Committee. These rules would tackle exploitation, while preventing temporary stays from becoming permanent. The European Commission estimates that over 100,000 third-country seasonal workers come to the EU every year.

The proposed rules are set to be the first on seasonal employment at EU level, but they will not affect Member States’ right to determine admission volumes or reject applications if workers could be hired locally to do the job. EU countries should also be free to define seasonal work beyond its traditional link to agriculture and tourism activities, such as fruit picking, say MEPs. This should be done in consultation with social partners and ensuring that all activities have a seasonal aspect.

An application to obtain a “seasonal worker permit” should include a work contract or a binding job offer specifying essential aspects, such as pay and working hours, say MEPs. It should also include evidence that the worker will benefit from adequate accommodation. Rent should not be excessive or automatically deducted from a worker's wage, says the committee.

The adopted text says that employers should pay for travel costs from the place of origin to the place of work and vice versa. Employers should also pay the visa fee and the cost of health insurance before the start of the contract.

The new rules aim to promote non-EU workers’ movement between a third country and the EU for temporary stay and work. This would be done either through a multi-season permit covering up to three consecutive years or by simplifying procedures for returning applicants.

The Court of Justice of the European Union has given an Opinion on what constitutes an 'act of persecution' for the purposes of recognition of refugee status for asylum seekers.

Under minimum standards established for all member states, the recognition of refugee status requires that the third country national concerned faces a well-founded fear of persecution in his country of origin for reasons of race, religion, nationality, political opinion or membership of a particular social group. The concept of an act of persecution covers serious acts which, on account of their nature or repetition, constitute a severe violation of basic human rights, in particular indefeasible rights.

The Federal Administrative Court of Germany had asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of the directive.

In his Opinion, Advocate General Bot recalled that the aim of the common European asylum system is not to grant international protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the conventions on the protection of human rights in his country of origin, but limits the recognition of refugee status to an individual who may be exposed to persecution in his country of origin, that is to say a serious and intolerable attack on his person and, in particular, his indefeasible rights, and whose life has become intolerable in that country.

Therefore, the Advocate General states that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ within the meaning of the directive where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom in his country of origin, runs a real risk of being executed or subjected to torture, or inhuman and degrading treatment, being reduced to slavery or servitude, or being prosecuted or imprisoned arbitrarily.

In that context, it is for the authorities responsible for examining the application for asylum to verify specifically the rule invoked in the country of origin and the repressive practice in a broad sense.

Help for migrants forced to flee their relationships as a result of domestic violence has been made permanently available from 1st April 2012.

Eligible spouses and partners will be granted a limited period of exceptional leave by the UK Border Agency. This will give access to public funds and support services, allowing victims to leave an abusive relationship and apply for residence in the UK.

Immigration Minister Damian Green said:

'Domestic violence is a terrible crime affecting people of all ages and backgrounds and this government is determined to tackle it.

'No one should be forced to stay in an abusive relationship and this scheme helps victims in genuine need escape violence and harm and seek the support they deserve.'

The scheme will assist foreign national spouses and partners who are victims of domestic violence. It will provide victims who would otherwise be destitute or have no access to public funds with an avenue to escape abuse and access vital support services.

The government has estimated the scheme will help 500 people to escape from abusive relationships across the UK.

The announcement follows a successful pilot, which has helped 1,522 individuals, including 738 women with children, escape from violent and dangerous situations since November 2009. In many cases the victims were afraid to seek help as they had no access to financial support and feared removal from the UK if their relationship broke up.

Rules have been laid in parliament confirming changes to Tier 2 of the points based system.

Following the Migration Advisory Committee report in October 2011 to advise on the 2012-13 annual limit for Tier 2 and associated policies, the government has announced that:

• The Tier 2 (General) limit will remain at its current level of 20,700 for the next 2 years until April 2014.
• The skill level required by migrants who wish to work in the UK will increase. This means the number of middle-management jobs such as IT technicians and security managers will no longer be open to migrant workers. However, highly-skilled occupations such as architect, teacher or chemical engineer will still be available.
• Additionally, the rules for businesses around advertising highly paid and PhD jobs will be relaxed. This will cut bureaucracy, meaning companies will no longer have to advertise vacancies through JobCentrePlus, where they are unlikely to get applicants for these types of jobs, but will still have to advertise more widely. Furthermore, companies will now be able to select the best candidate for PhD level occupations, even if they require Tier 2 sponsorship.

Prospective workers will still need to have a graduate level job, speak an intermediate level of English and meet specific salary and employment requirements before they are able to work here. Those earning a salary of £150,000 or more will not be subject to the limit.

On 15 March 2012, a written ministerial statement was laid in Parliament outlining a number of changes to the Immigration Rules.

From 6 April 2012, the Tier 1 (Post-Study Work) category will close to new applicants.  However, it will now be easier for existing Tier 1 (Post-Study Work) migrants to extend their stay in the United Kingdom by switching into the Tier 1 (Entrepreneur) category.

Whereas most individuals who apply to enter the UK or switch from another category into the Tier 1 (Entrepreneur) category are, with certain limited exceptions, required to demonstrate that they have access to at least £200,000, the funds requirement will be substantially reduced for post-study workers. 

From 6 April 2012, any individual who is currently in the UK with leave to remain as a Tier 1 (Post-Study Work) migrant and who wishes to switch into the Tier 1 (Entrepreneur) category will now only need to demonstrate that they have access to at least £50,000. 

Post-study workers will be able to rely on money that is held in their own account or in someone else’s account, provided that the third-party confirms that the funds are available to the post-study worker for investment in a UK business.  In either case, the money will need to be held in a regulated financial institution such as a bank or building society and be capable of being spent in the UK

Two post-study workers will be able to apply together as an ‘entrepreneurial team’, provided that they both have equal access to the investment funds.

However, applicants should be aware of one potential restriction.  Post-study workers switching into the Tier 1 (Entrepreneur) category will need to have already registered as self-employed or as the director of a business, and be engaged in business activity, other than in the work necessary to administer their business, in an occupation at National Qualifications Framework level 4, at the date of their application for an extension of stay.

On 15 March 2012, a written ministerial statement was laid in Parliament outlining a number of changes to the Immigration Rules.

From 6 April 2012, the Tier 1 (Graduate Entrepreneur) category will be open for graduates who wish to extend their stay in the UK in order to establish one or more businesses in the UK and who have been identified by Higher Education Institutions as having developed world class innovative ideas or entrepreneurial skills.You will be able to apply for leave to remain as a Tier 1 (Graduate Entrepreneur) if you have, or have last been granted, entry clearance, leave to renter or remain as (a) a Tier 4 Migrant, (b) a Student, (c) a Student Nurse, (d) a Student Re-sitting an Examination, (e) a Student Writing Up a Thesis, (f) a Postgraduate Doctor or Dentist, or (g) a Tier 1 (Graduate Entrepreneur) Migrant.

You will need to be able to satisfy the following requirements in order to obtain a Tier 1 (Graduate Entrepreneur) visa:

(1)    Endorsed by a UK Higher Education Institution

You must show that you have been endorsed by a UK Higher Education Institution which:
(a)    has Highly Trusted Sponsor status under Tier 4 of the Points-Based System,
(b)    is an A-rated Sponsor under Tier 2 of the Points-Based System if a Tier 2 licence is held;
(c)    is an A-rated Sponsor under Tier 5 of the Points-Based System is a Tier 5 licence is held; and
(d)    has established processes and competence for identifying, nurturing and developing entrepreneurs among its undergraduate and postgraduate population.

(2)    Requirement of endorsement

(a)    If your previous grant of leave was not as a Tier 1 (Graduate Entrepreneur) Migrant, the endorsement must confirm that, within the 12 months immediately before the date of the endorsement, you were awarded a UK recognised Bachelor degree, Master degree or PhD (not a qualification of equivalent level which is not a degree);

OR

If your previous grant of leave was as a Tier 1 (Graduate Entrepreneur) Migrant, the endorsement is from the same institution which provided the endorsement for that previous grant of leave.

(b)    The endorsement must confirm that the institution has assessed you and considers that: 

(i)    You have a genuine, credible and innovative business idea; and
(ii)    You will spend the majority of your working time on developing business ventures; and
(iii)    If your previous grant of leave was as a Tier 1 (Graduate Entrepreneur), you have made satisfactory progress in developing your business since that leave was granted and will, on a balance of probabilities, qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant within the next 12 months.

(3)    English Language

If you are not a national of a majority English-speaking country, then you must:

•    Pass an approved English language test at CEFR level C1 (equivalent to 6.5-8.0 IELTS) in all four components (reading, writing, speaking and listening; OR

•    Hold a degree that was taught in English and is equivalent to a United Kingdom bachelor’s degree or above.

(4)    Maintenance

You must have at least £900 in personal savings which has been held for a consecutive 90 day period before the date of application.

On 15 March 2012, a written ministerial statement was laid in Parliament outlining a number of changes to the Immigration Rules.

From 14 June 2012, the personal savings you must have to support your Tier 1 application will increase.

Because the personal savings must have been held for a consecutive 3 month period, if you plan to make a Tier 1 application on or after 14 June 2012, you must ensure the correct funds are held in your account as soon as possible.

The National Audit Office (NAO) has issued a report on the 2009 implementation of a points based route, known as Tier 4, by which students from countries outside the European Economic Area can study in the UK.

The report has found that the UK Border Agency implemented Tier 4 with flaws which were predictable and could have been avoided. The Agency has not dealt efficiently and effectively with overstayers and students in breach of the rules.

Under the previous system of student immigration for non-EEA students, replaced by Tier 4, there was no limit to the number of students whom a college could enrol and students were free to move college and course as they wished without notifying the Agency. Under Tier 4, each student must be sponsored by educational institutions licensed by the Agency and cannot change college without applying to the Agency. Sponsoring colleges are responsible for judging students' intentions to study.

The Agency implemented Tier 4 before the key controls were in place. Based on college enrolment rates and changes in application patterns, the NAO estimates that, in its first year of operation, between 40,000 and 50,000 individuals may have entered the UK via Tier 4 to work rather than to study. The Agency did not check that those who entered the UK as students were attending college.

The Agency introduced new controls in 2011 and a fully-documented compliance strategy in December 2011 that are likely to reduce the number of problem students. But it will not be possible to determine the value for money of the Points Based System for students, unless the Agency establishes ways to measure its success in tackling abuse, including how it deals with overstaying, and to establish the full cost of its Tier 4 related activities.

On 15 March 2012, a written ministerial statement was laid in Parliament outlining a number of changes to the Immigration Rules.

From 14 June 2012, the personal savings you must have to support your Tier 2 (General) application will increase.

If you plan to make a Tier 2 application on or after 14 June 2012, you must ensure the correct funds are held in your account as soon as possible because the funds will need to have been held in your account for a consecutive 3 month period:

The Upper Tribunal has issued guidance to representatives concerning appeals to the Upper Tribunal based upon the alleged misconduct of an Immigration Judge.

The key points of guidance may be summarised as follows:

• A party alleging misconduct by a judge needs to prove it;
• Parties and their representatives need to ensure that the evidence is collected while memories are fresh;
• Permission to call evidence before the Upper Tribunal may be refused where, in circumstances where a party has not acted promptly to prepare and disclose evidence, it would be unfair to the other party, or not in the interests of justice.

Paragraphs 12, 14 and 15 of the Upper Tribunal’s determination are worth quoting in full:

12.The Tribunal treats allegations made about the conduct of judges with the greatest seriousness. It goes without saying that if grounds of appeal, such as those raised in the present case, are made out, they are very likely to cause a determination to be set aside. But it is not sufficient to make the allegations: they must be substantiated in fact, and in a way that is in itself fair to all interests, including those of the respondent and of justice generally.

...

14. This is not an appropriate way to conduct civil litigation and it is a particularly inappropriate way to attempt to establish grounds of appeal relating to the alleged misconduct or inappropriate conduct of a judge, which, as Ms Hulse reminds us, is a matter of importance going beyond the outcome of an individual case. Allegations of that sort always need to be supported by evidence. The evidence needs to be served on the respondent and filed with the Tribunal in good time, so that it can be properly considered. It may be appropriate for this Tribunal to seek comments from the Judge. The Secretary of State will need to consider whether to call the Presenting Officer as a witness if she considers that the allegations are groundless. None of this can be done if the evidence is not made available well in advance of the hearing.

15. Directions may be given, but they should not be necessary. Solicitors who allege that a judge has behaved improperly should know that they need to support the allegation with evidence, and should be prompt in bringing the evidence to the attention of the Tribunal and the respondent. They are likely to want to seek an early hearing of the matter, before memories fade. They are likely to ensure that any prospective witnesses make a note at the earliest possible opportunity. A contested trial of fact about what happened at a previous hearing may be necessary, but it can in some cases be avoided if all parties and the Tribunal are made aware of the strength of the case if it is a strong one. Conversely, failure to prosecute the case, failure to serve evidence, and reliance upon a witness who did not make a note in preference to a witness who did, may well indicate that a case is not strong.

Recent data released by Eurostat, the statistical office of the European Union, has revealed that the number of asylum applicants registered in the EU27 rose to 301 000 in 2011.

It is estimated that around 90% of these were new applicants, and around 10% were repeat applicants. In 2010, there were 259 000 asylum applicants.

In 2011, the main countries of citizenship of these applicants were Afghanistan (28 000 or 9% of the total number of applicants), Russia (18 200 or 6%), Pakistan (15 700 or 5%), Iraq (15 200 or 5%) and Serbia (13 900 or 5%).

In 2011, the highest number of applicants was registered in France (56 300 applicants), followed by Germany (53 300), Italy (34 100), Belgium (31 900), Sweden (29 700), the United Kingdom (26 400), the Netherlands (14 600), Austria (14 400), Greece (9 300) and Poland (6 900). These ten Member States accounted for more than 90% of applicants registered in the EU27 in 2011.

In some Member States, a large proportion of the applicants came from a single country. The Member States with the highest concentrations were Poland (63% of the applicants came from Russia), Latvia (52% from Georgia), Luxembourg (44% from Serbia), Lithuania (43% from Georgia), Bulgaria (39% from Iraq) and Hungary (38% from Afghanistan).

In 2011 in the EU27, 237 400 first instance decisions were made on asylum applications. There were 177 900 rejections (75% of decisions), 29 000 applicants (12%) were granted refugee status, 21 400 (9%) subsidiary protection and 9 100 (4%) authorisation to stay for humanitarian reasons.

In this case, the Court of Appeal discussed whether or not there is a 'near miss principle' in Article 8 cases.

People refused leave to remain in the country due to not meeting the requirements of the Immigration Rules often argue on appeal that their removal would breach their human right to respect for private life. Since 2010, an increasingly common argument has been that if someone nearly meets the requirements of the Rules but has fallen just short, it would be disproportionate to remove them, and so a breach of Article 8. This approach can be very useful, for example, for appellants under the Points Based System whose bank accounts fell a few pence below the required balance for a short time.

In Miah, the Court of Appeal stated that there is no near miss principle, and that the previous case law that suggested there was is not binding because the statements in question weren't part of the ratio decidendi - the reasons why the case was decided the way that it was. At first glance, this appears to be bad news for appellants who nearly meet the Immigration Rules but still fall just short. However, a careful reading indicates that the consequences are not actually as far reaching as that.

To understand the implications of Miah, it is essential to appreciate what Article 8 involves. To win under this Article, an appellant must show that removing them from the UK would be disproportionate to the Home Secretary's aim in removing them. Apart from in cases about the deportation of criminals, the aim will almost always be the economic wellbeing of the country through the maintenance of effective immigration control. In simple terms, assessing proportionality is a balancing act; the court must decide how much weight is to be placed on the Home Secretary's aim, and how much weight is to be placed on the reasons cited for not removing the appellant. If the appellant's reasons carry more weight, then removing them would be disproportionate and would breach Article 8.

In Miah, the main appellant fell just short of meeting the Immigration Rules; it was therefore a 'near miss' case. He argued that the near miss meant that less weight should be placed upon the Home Secretary's aim of immigration control. The Court of Appeal rejected this argument and in doing so said that there is no 'near miss' principle.

However, this does not mean that a near miss can never be relevant to an Article 8 case. As explained above, there are two sides to the proportionality balancing act - the Home Secretary's aim and the appellant's interests. The Court of Appeal discussed the first of these, but not the second. It is therefore still possible to argue that, even if a near miss does not reduce the weight to be attached to immigration control, it may increase the weight to be attached to the interests of the appellant. This may seem just a case of semantics, but it is in fact a very important distinction in practice. All things being equal, someone who complies with some of the Rules that the Home Office wants them to comply with surely has a better claim to stay in the UK than someone who complies with none of them.

European countries will receive more support from the EU to take up refugees under a new joint resettlement programme endorsed by the Civil Liberties Committee. The programme aims to step up the EU's role in providing international protection, especially for vulnerable groups such as women at risk and unaccompanied minors, in cooperation with the UN Refugee Agency (UNHCR).

The programme is to resettle in the EU people who have been granted refugee status in third countries (for example, Libyan refugees in Tunisia). As the host countries are often developing ones, with limited resources, they cannot integrate and protect large numbers of refugees.

According to the UNHCR, over 172,000 people will need to be resettled in 2012, whereas the global number of resettlement places is only about 80,000. In 2010, the EU resettled around 4,700 people, representing only 4.4% of those resettled worldwide that year, far behind the US (near 54,000 refugees) and Canada (around 6,700).

In line with MEPs' proposals, EU financial support for resettling refugees in the above groups will be increased. Member States currently receive €4,000 per person resettled on their territory. To encourage more EU countries to help in resettlement, Member States resettling refugees for the first time will get €6,000 per person for the first year and €5,000 per person for the second year. For the rest the sum received will stay at €4,000.

To date, 13 Member States have set up annual resettlement programmes: Sweden, Denmark, Finland, the Netherlands, the UK, Ireland, Portugal, France, Romania, the Czech Republic, Spain, Hungary and Bulgaria.

The Joint EU Resettlement Programme has been agreed by Parliament and Council representatives. The European Parliament as a whole will vote on it on 29th March. If adopted, Member States will have until 1st May 2012 to send the Commission an estimate of the number of persons they will resettle next year. The programme will apply in 2013.

The government's announcement that it will be changing the rules for migrant domestic workers, including the removal of the right to change employer, will facilitate slavery and trafficking, say human rights charities Kalayaan and Anti-Slavery International. 

Migrant domestic workers are vulnerable to horrific abuse and exploitation as has come to light in a number of recent high profile cases in the criminal courts.

The changes would mean that any domestic workers able to escape abuse will immediately lose their right to reside in the UK, therefore greatly reduce the likelihood that they would seek help from the authorities for fear of being deported.

This policy would lead to the victims becoming ‘illegal’ and perpetrators going unpunished. Campaigners believe that the removal of the legal right to escape an abusive situation would result in domestic workers, desperate to earn money for the survival of themselves and their families, going underground, creating an underclass of unprotected and undocumented workers not protected under UK labour laws.

Audrey Guichon, Domestic Work Programme Co-ordinator, Anti-Slavery International, said: “By tying domestic workers to one employer the Government will effectively be licensing slavery, allowing employers to bring workers to the UK without providing those same workers any way of challenging or escaping abuse if it occurs. These proposed changes would give unscrupulous bosses the power to threaten workers with deportation if they do not comply with whatever they demand.”

A package of measures designed to drive forward radical reforms to the immigration system and ensure the UK attracts only the brightest and best migrants has been laid in Parliament.

A new minimum pay requirement of £35,000 for skilled temporary workers wishing to apply for settlement will mean that only those who make the biggest contribution to the UK economy will be able to stay here permanently. The income requirement will take effect in April 2016.

The annual limit for the Tier 1 exceptional talent route - designed to meet the needs of exceptionally talented leaders in the fields of science, humanities, engineering and the arts - will remain the same for the next two years, at 1,000 visas.

There will be a number of changes to the student entry route, which will take effect on 6th April, including:

• the closure of the post-study work route,
• the introduction of a five-year time limit for study at bachelors and masters degree level, to ensure the student route serves its proper role as a means of temporary entry to the UK, not of achieving permanent settlement here;
• limiting the time students are allowed to spend on work placements, to crack down on those who come to the UK to work, rather than study; and
• offering the brightest and best university graduates who have a compelling business idea the chance to stay on through our graduate entrepreneur scheme.

When reforms to the student visa system have been fully implemented, the government estimates that there will be around 70,000 fewer student visa grants a year and around 20,000 fewer visas issued to dependants.

Other Immigration Rules changes laid before Parliament include provisions to:

• provide for mandatory, rather than discretionary, curtailment of leave to remain in the UK when a migrant fails to start or withdraws from their job or study course;
• reform the overseas domestic worker routes, as announced by the Home Secretary last month; and
• allow certain professionals, artists, entertainers and sports-people to carry out paid activities in the UK for up to one month, also as announced last month.

EU Commissioner Malmström has issued a statement welcoming the European Council adoption of a common position on the Joint EU resettlement programme.

In his statement, the Commissioner says: “This is a much needed measure and a considerable step towards concrete engagements and increased cooperation regarding resettlement of refugees to Europe and will allow us to pool our resources and make a true difference in a spirit of solidarity."

2012 is the deadline for setting up the Common European Asylum System which will guarantee common minimum standards and procedures, and a uniform refugee status. A stronger engagement in resettlement also forms an integral part of the EU common asylum policy.

The Joint EU Resettlement Programme will increase the impact of the EU resettlement efforts in providing protection to refugees and maximising the strategic impact of resettlement through a better targeting of those persons who are in greatest need of resettlement.

The Resettlement Programme will specify a broader list of refugees whose resettlement will qualify for EU funding. There will also be specific EU resettlement priorities, specifying the nationalities of refugees and the countries from which resettlement should take place as a priority and for whom EU funding is available. In 2013 that list will include refugees from Congo, Iraq, Afghanistan, Somalia, Burma and Eritrea. Finally, the programme offers additional financial incentive for the countries that start to engage in resettlement activities.

For the period 2014-2020, the Commission proposes to set up a new mechanism which will be more flexible and attractive for the Member States and which will allow for more strategic use of resettlement. This should lead to a substantial increase in resettlement to the EU. The aim is to see more national resettlement schemes established and to increase the already existing ones.

The UK Border Agency has completed the rollout of biometric residence permits in the UK. This significantly increases the number of biometric residence permits issued by the agency.

From 29th February 2012, all applicants from outside the European Economic Area (EEA) applying to stay in the UK for more than six months have to register their fingerprints and digital facial image. Successful applicants will be issued a biometric residence permit as evidence of immigration status and entitlements in the UK. This includes refugees and those granted settlement.

Since the rollout began in November 2008 the home office has issued around 650,000 biometric residence permits, containing fingerprints and photograph on a secure chip. Biometric residence permits are an important step in fighting immigration abuse and illegal working and make it easier for employers to verify a foreign national's right to work in the UK.

Source: The Home Office

This case gives some hope to work permit holders who might otherwise be caught out by the Home Office's sudden introduction of a new requirement to be paid a certain salary in order to secure indefinite leave to remain.

Until 6 April 2011, you could be granted indefinite leave to remain if you had spent 5 years in the UK with leave as a work permit holder and your employer confirmed that they still needed you for the job. However, out of the blue, the Home Office amended the Immigration Rules to say that you must be paid at or above the 'appropriate rate' for the job as set out in the Codes of Practice for Tier 2 of the Points Based System. This has caused and will cause problems for a lot of people, who have been allowed to live and work in the UK for several years and are likely to have no control over the salary that their employer pays them.

In Philipson (ILR - not PBS: evidence) India [2012] UKUT 39 (IAC) the Upper Tribunal questioned whether the Tier 2 Codes of Practice could apply to someone who had never had or needed a Certificate of Sponsorship under Tier 2. It was also suggested that it could be a breach of human rights under Article 8 to refuse someone leave to remain based on their salary being too low when they had spent 5 years here in the expectation that they would be able to reside permanently.

The particular appellant in Philipson actually met the requirements of the Immigration Rules in any case; she was paid at the 'appropriate rate' so her appeal was allowed on this basis. That means that the Tribunal's comments about the change in the Rules are what is called 'obiter'; they are not strictly binding on the Home Office or the First Tier Tribunal. However, they are strongly worded and provide hope that the courts will treat other people applying for indefinite leave as work permit holders favourably.

The easiest way for a work permit holder to succeed in an application for indefinite leave to remain will still be to negotiate a pay rise with their employer so that they are being paid at the 'appropriate rate' at least in the last pay period before they apply. However, if this is not possible then there is a strong legal case that can be advanced to the Home Office, and to the Tribunal on appeal if necessary, that to refuse the application would be unlawful for the reasons suggested in Philipson. There is also an argument, arising from the judgment of the Court of Appeal in Secretary of State for the Home Department v. Pankina [2010] EWCA Civ 719 that the Home Office cannot rely on a substantive requirement - here, the requirement to be paid at a specific rate - if that is imposed by a document outside the Immigration Rules that has not been considered by Parliament.

If this issue is likely to affect you then you are strongly advised to seek legal advice and assistance in preparing your application in order to minimise the risk of a refusal, and in arguing your case in front of an Immigration Judge if you do receive one.