Appropriate salary for extending leave to remain as a Tier 2 migrant
In Tukhas (para 245HD(f): "appropriate salary") Russia[2016] UKUT 183 (IAC) (17 March 2016) the Upper Tribunal (Immigration and Asylum Chamber) considered the correct interpretation of paragraph 14 of Appendix J of the Immigration Rules (codes of practice for skilled work) when a decision is being made whether or not an applicant has an appropriate salary for the purposes of extending leave as a Tier 2 migrant, with reference to paragraph 79 of Appendix A.
The Upper Tribunal held that paragraph 14 of Appendix J, dealing with circumstances when the applicant's gross annual salary is to be pro-rated for the purposes of paragraph 79 of Appendix A, is only relevant when that applicant also has contracted weekly hours or is paid an hourly rate.
At paragraph 10 of the decision, Upper Tribunal Judge O'Connor held:
‘The fact that an applicant works in excess of 39 hours per week is only relevant if that applicant also has contracted weekly hours or is paid an hourly rate. In these, and only these, circumstances an applicant's gross annual salary is pro-rated for the purposes of paragraph 79 of Appendix A.’
Because there was no admissible evidence before the Upper Tribunal which supported a contention that the appellant was contracted to work weekly hours or paid an hourly rate, the Upper Tribunal concluded that the appropriate salary for the purposes of paragraph 79 of Appendix A was the applicant's gross annual salary to be paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii).
Consequently the appellant’s appropriate salary for the purposes of consideration under paragraph 79 of Appendix A was to be taken as being £22,600 per annum, being the "appropriate rate for the job" (paragraph 79B to Appendix A) which is set out in Table 2 of the Codes of Practice in Appendix J to the Rules (code 2126).
Consequently, the Upper Tribunal set aside the decision of the First-Tier Tribunal, as it contained an error on a point of law, and re-made the decision allowing the appeal on the basis that the appellant met the requirements of the Immigration Rules.
