Tier 2 Visas and Unlawful UKBA Guidance
Owolabi (Tier 2 - skilled occupations) Nigeria [2011] UKUT 313 (IAC) (18 July 2011): This case concerned a Nigerian appellant who came to the UK as a Highly Skilled Migrant in 2008. He applied for leave to remain as a Tier 2 (General) Migrant in 2009, under the Points Based System (PBS). Tier 2 is for skilled workers with a job offer, the aim of which is to fill gaps in the UK labour force.
The appellant’s job was Field Immigration Administrator in Ilford. His application was refused because the Secretary of State for the Home Department (SSHD) held that he did not have the requisite number of points under the PBS, according to Appendix A of the Immigration Rules (HC395, as amended). The appellant’s salary was not deemed high enough according to the published UKBA guidance. This meant that the employer had not complied with the Codes of Practice (occupation code 2419). The appellant’s salary amounted to £13.18 per hour, but according to the Secretary of State for the Home Department should have been £13.73 per hour, in order to gain the requisite number of points.
The Tribunal examined the Court of Appeal’s judgements on previous instances of the SSHD relying on her published guidance (on the UKBA’s website), which she had approved without Parliament, such that it could not be law.
In Pankina [2010] EWCACiv 719, the SSHD published guidance on the Immigration Rules to say that the rule that an applicant must have £800 meant that s/he must have had that amount of money for three months prior to the date of his/her application. The Court of Appeal found that, because this requirement had not been put before Parliament properly, it could not be said to be law, and that, whilst laws reference specific sources to be relied on, it could not be left to the SSHD’s ‘unfettered judgement’ to make up what the rules referred to.
Again, in R (Alvi) [2011] EWCA Civ 681 the SSHD had sought to rely on published UKBA guidance. However, this guidance was not part of the Immigration Rules and had not been before Parliament for 40 days when published.
In the same way in this case, the SSHD had taken as the starting point for the decision that the UKBA published guidance specified a list of jobs and salary levels for these jobs. The applicant had to apply for one of the jobs on the list, and then show he was being paid at the correct salary level to obtain the right number of points for a visa. In light of Pankina and R (Alvi), however, the UKBA guidance could not be relied on because it was not lawful, as it was made up by the SSHD without prior Parliamentary scrutiny.
It was noted also that if the applicant had categorised his job (Field Immigration Administrator) as ‘administrative’ under the guidance, not ‘legal’, he would have met the salary level and obtained the points. The SSHD could have exercised discretion to grant leave to remain. In any event, the scheme set out in the UKBA guidance was unlawful. The appeal was allowed.