Immigration Barristers' Blog

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:

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.

As part of the government's commitment to reviewing the immigration system, a consultation was launched last summer proposing reforms to employment-related settlement, Tier 5 and overseas domestic worker routes.

Immigration Minister Damian Green has now announced the government's response to this consultation. The proposed changes will mean that skilled migrant workers coming to the UK under Tier 2 of the points-based system will no longer be able to settle in the UK simply based on the amount of time they have spent in the UK.

A new minimum pay threshold will also mean that only the brightest and best workers, who strengthen the UK economy, will be able to apply to stay in the UK permanently.

The new rules will break the link between coming to the UK to work and staying forever. Exceptionally talented people, investors and entrepreneurs will continue to have the option to stay. Skilled temporary workers wanting to apply for settlement will have to earn at least £35,000 or the going rate for their job, whichever is higher.

Migrants doing jobs which are in shortage, and scientists and researchers in PhD-level roles, will be exempt from the £35,000 threshold. Temporary permission to enter and remain in the UK will be capped at six years, to reinforce the temporary nature of Tier 2.

The government also plans to make changes to the visitor rules to allow a defined group of professionals to undertake specific fee-paid activities for short stays of up to one month without formal sponsorship requirements.

Source: UK Border Agency

The UK Border Agency has made some amendments to the list of approved English language tests for applications made under Tiers 1, 2 and 4 of the points-based system and for spouse or partner applications.

The amendments include:

• The City & Guilds test scores now show 'pass' and there is a separate English language test for spouse/partner applications.
• For City & Guilds tests the documents required for a migrants application have been amended.
• ETS have changed the way that the scores for their TOEFL ibt (internet based test) map against the Common European Framework of Reference (CEFR).
• The ETS TOEFL ibt (internet based test) now includes scores for spouse and partner applications.
• There is a change to the web address for the TOEIC (The test of English for international communication) English language test.
• Cambridge ESOL (English for speakers of other languages) have amended the title of one of their tests from 'International Legal English Certificate' to 'Cambridge English Legal'.
• For Cambridge ESOL tests the minimum grade requirements are clearer.
• Trinity College tests now have a 2 year expiry date.

When applications are made in an immigration category that requires a demonstration of English language ability, applicants must show that they have passed an appropriate test on the list.