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Watch out old work permit holders…


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Back on 6 April 2011 the UK Border Agency made a change to the settlement rules for work permit holders who had entered the UK before the Points Based System was introduced. The change required a work permit holder to be paid a certain salary in order to qualify for settlement, or Indefinite Leave to Remain. The salary required is that specified in the myriad Codes of Practice for Tier 2 of the Points Based System.

The problem since faced by many work permit holder seeking settlement after five years of living and working in the UK is that their work permit was approved for one salary, which is what they have as a consequence been paid by their employer, but suddenly, with no individual warning, that salary level is no longer sufficient and the work permit holder neither qualifies for settlement nor for an extension under Tier 2.

An announcement recently went up on the UK Border Agency website that as of 31 October 2011, work permit holders will not only need to be paid the Code of Practice salary but will need to submit certain specified documents in order to demonstrate this. Previously certification by the employer was sufficient, but no longer.

The 6 April change was clearly an unfair one in the moral sense – the rules of the game were changed without notification. Foreign workers have a potentially difficult relationship with their employer in any event, and negotiating a rise in salary might well have been difficult even had they known one was needed. However, in immigration law it is very difficult to succeed on the basis of a legitimate expectation or a fairness argument. The courts have repeatedly held that there is no legitimate expectation that the Immigration Rules will remain the same (see Odelola for example). Cases that have succeeded, like the HSMP and BAPIO challenges, were based on specific assurances that the rules would remain the same, assurances that are not normally given. I have myself struggled to come up with a robust legal solution for those facing this problem. Article 8 ECHR is the best I can offer, but I would be interested to hear if anyone has done better.

Those work permit holders coming to the end of their five years and considering applying for settlement would be well advised to make sure they have checked they are paid in accordance with the relevant Code of Practice.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


17 Responses

  1. Does anyone know when they should actually have a salary rate of what stated in the code of practice? Surely it can’t be for the whole 5 years?

    1. At a time that it can be reflected in the most recent payslip (and bank statement) before the settlement application.

  2. I suspect the fairness argument has a better chance of succeeding particularly the limb of increasing the salary without informing the work permit holders.

    Paragraph 70 of R (on the application of Q and others) v Secretary of State for the Home Department [2003] EWCA Civ 364

  3. If an employer does agree to raise an employee’s salary so they can qualify for ILR, then is there also a concern that this would amount to a “change of employment”? A small increase wouldn’t need to be reported, but if the salary has been unchanged for 5 years, then could a jump to the level in the Codes of Practice trigger a demand from UKBA that the unfortunate applicant reapply first under Tier 2? Probably not a common situation, but a possibility.

  4. Employer will need to pay their employee according to SOC Before application for ILR… there is no requirement stating how long this has to have been done for (but you have to show it, hence the new requirements). An increase in salary to meet the SOC code for the purposes of meeting the ILR requirements has hardly raised a fluttered eyelash at PEO, as making the applicant / sponsor go through another COE application will be pointless [insert your ‘fairness’ and ‘reasonable expectation’ argument here if they do insist on it]… Although the UKBA is very slow, they do know what common sense is!

    1. You clearly misunderstand and are placing things out of perspective… I was referring to WP applications, especially those made at PEO. If they lose your file there, then there clearly would be some form of incompetence at work, but what you are referring to are asylum claims and students (alot of whom makes POSTAL apps).

      In any event, if the applicant does not update their details with the UKBA, what can they really do about it… break down every door of the last known whereabouts of the applicant / barricade the country in electric fencing so no one can escape / ask EVERY passenger leaving the country if they have another identity (which some asylum seekers do) so you can less one on your tally?

      Short of [pink-fluffy] handcuffs to the bed post until their application / studies is /are complete (and then letting them stay or removing them instantly), how can the UKBA keep working on these files and keeping them ‘live’ in the system?… Statistically, it looks really bad and the D*ily Mail [and others] likes to put on a neat headline for their readers… But what would your common sense approach be if you’re the UKBA?

    2. Not a good weekend for the UKBA.

      Common sense is what it is, whatever the context.

      100,000 illegals ignored so staff have time to fight family migration and work based applications? I think FM might use the term “dereliction of duty”.

  5. So the higher salary up to SOC standard only needs to be paid to the applicant 1 month before application for settlement and the standing order so that applicant wages are paid to the bank are also only required for 1 month?

  6. anyone could you tell me please how much salary should be as new home office code of practice from 31st of oct 2011?? cant find the right answer please help me,

  7. I have recently gone to the Tribunal in a work permit ILR case like this. I am still waiting for the determination, but I argued on grounds of Pankina and Zulfiqar Alvi (2011) that the codes of practice were placing a burden on the applicant and that they were unlawful in specifying what was essentially a major requirement, without including it in the rules properly. I’ll have to wait and see what I can get out of it for the client, but that might be an avenue to take.

  8. Can any one tell me if any one wants to apply ILR after passing 5 years as work permit, there is a cohabitation(Husband n wife) of 2 years.Is tenanacy agreement is ok to prove that?

  9. Can’t “accepting a job offer and migrating to the UK” treated like a “contract between the immigrant and the govt”?

    Looking back, I was given the right to settle after 5 years lawful employment. And now they are changing the conditions. I don’t think it’s got anything to do with fairness; I don’t need anyone’s PITY OR FAIRNESS. I just expect them to do what they said they would do.

    It is SIMPLE common sense honesty and INTEGRITY! This was a contract and as the other party of this ‘visa contract’ I complied with all these; didn’t break the rules or anything….And no one forced them to offer me a job or give me a visa! Why would I accept something that says “the rules can change anytime” and risk 5 YEARS OF MY LIFE??? Do I look so naive? Apparently, yes I do!

    But can’t fight the government’s motto:
    “The only way to tackle illegal immigrants, asylum seekers, unemployment, the financial deficit, the debt of NHS… is to make the life of LEGAL MIGRANTS MISERABLE”
    I personally am not blaming them, the burden of the bloody legal immigrants like me who spent £90K and paid £14K in tax and £9K NI contributions in 3,5 years is too heavy for this economy…(I’ll be honest: I happened to visit a walk-in centre once – Yes I am a blood sucking immigrant who had a taste of living on benefits!).

  10. So if they introduce a new requirement of earning more than £31K (as MAC recommends) as a WP holder earning £25K I will not be able to apply for ILR?

    That’s really nasty. I mean my home country is not as developed as the UK but even there the legislation won’t let you “introduce” new stuff like this.

    1. This salary is based on Industry averages. If your salary is less than COP then you are under paid. It’s also giving a guide line for a new employee.

    2. My salary is above the COP but if they introduce a new rule saying ‘£31K income required to apply for settlement’?
      On top of it, I can not change my job to a higher paid one to meet that rule because then I will be ‘entering the PBS system after April 2011’ and will completely loose my right to apply for settlement…

      So bloody regret coming here!

      Just waiting to gain ‘the reward’ for all this uncertainty I had to go through in the last 4 years!