A new decision from the President of the Immigration and Asylum Chamber of the Upper Tribunal offers relief to work permit holders caught out by a sneaky change to the Immigration Rules in April last year. This topic has been covered here on the blog before, here and here.

Before the new dawn of the Points Based System, work permits were issued at a specified salary level for a period of five years. In April 2011, though, a new rule was introduced with no publicity that required work permit holders to be paid at salary levels set out in the labyrinthine Tier 2 salary codes if they were to qualify for settlement at the end of five years. These levels are sometimes higher than the salaries at which some work permits had been issued. Some work permit holders therefore reach the end of their five years of leave and find only at that point that their salary is inadequate to qualify for settlement.

The new case, Philipson (ILR – not PBS: evidence) India [2012] UKUT 00039 (IAC), offers three solutions to this problem.

The first is to suggest that the transitional arrangements did not apply to a person who never required or possessed a certificate of sponsorship. No salary level was therefore specified and the problematic new sub paragraph of the rules did not apply at all. See paragraph 14 of the determination.

The second is to suggest that the claimant in this case would have succeeded in her appeal anyway under Immigration Rule 395C (to be scrapped next week, sadly) because of the unfairness of the situation in which she and her family found themselves:

‘The intrinsic lack of justice in this case comes from the attempt at the 59th month of her 60 month stay, to impose wage conditions on her  that were irrelevant to the original grant of the work permit. She was unaware of  the need to comply with these conditions, although we recognise that the application form rule 10 B does alert the keen reader to a footnote 9 on page 37 from which a reference to the UKBA website and the codes of guidance can be obtained. Her employer on whom the responsibility for certification rests was unaware of this wage requirement, which suggests that notice of this recent change of practice had not been disseminated widely to those organisations that employed foreign work permit holders.’

Thirdly, the tribunal indicated that it would probably have allowed the case on human rights grounds under Article 8:

‘Even if her employer had refused a wage increase or refused to back-date it to the period before the decision of the Secretary of State in question, we would have wanted to explore with some care whether there was a legitimate aim for refusing her application. She met the statutory minimum wage conditions. She had performed and was continuing to perform a valuable social service in a field of employment in which there are labour force shortages given the low level of wages. Having admitted her at a certain wage level and led her to believe that settlement was probable at the end of the five year period, it is very harsh to refuse her because of a recent change of policy that operated on employers and not employees. A less intrusive means of promoting the legitimate aim of maintaining reasonable wage levels in the industry would be to require the employer to improve the wage or to permit the appellant to move to an another employer willing to pay the increased wage. It is trite law that a measure may be a disproportionate interference with a human right if the decision maker has not adopted an alternative means of promoting the aim that is less intrusive on the right: see for example SSHD v Daly [2001] UKHL 26; [2001] 2 AC 532 at [27].’

The tribunal also finds that Immigration Judge Vaudin D’Imcourt had been wrong to exclude the evidence of a backdated salary increase, based on a misreading of the controversial new s.85A. This was not a Points Based System case and therefore that section had no application. For this particular appellant this was enough for her case to succeed in a straightforward way under the rules in any event.

The tribunal is notably critical of the approach and reasoning of the first instance judge in this case, overturning every aspect of the determination.