Philipson (ILR - not PBS: evidence) India [2012] UKUT 39 (IAC)

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.