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Requirement of minimum wage under SOC for work permit holders may be in breach of the Human Rights Act

Under paragraph 134(iv) of the UK Immigration Rules, a work permit holder applying for indefinite leave to remain is required to provide certification from his employer that he is paid at or above the appropriate rate for the job as stated in the Standard of Occupation Codes of practice for Tier 2 Sponsors, in line with the analogous requirement for Tier 2 migrants under the points-based system.

One of the problems with this requirement is that employers of Work Permit holders do not necessarily have a Tier 2 sponsorship licence and thus are not subject to any requirements of the UKBA for Tier 2 sponsors.

The requirement puts the Work Permit holder at the mercy of the employer and no doubt leave room for abuse and exploitation.  Maybe not surprisingly, the requirement has not been formally challenged.

In the case of Philipson (ILR- not PBS: evidence) India [2012] UKUT 00039 (IAC) the Upper Tribunal considered a case where the Work Permit holder’s application for indefinite leave to remain was refused for failure to meet SOC salary requirement.  After the refusal the appellant produced evidence that his salary had been increased with a retrospective effect, thus lifting the issue of legality of the actual requirement.

The Home Office argued that evidence of retrospective change should not be admitted and the First-tier tribunal made an error of law having considered the application for settlement as made under the Points Based System.

The Upper Tribunal set right the obvious error of the First-tier tribunal judge confirming that work permit holders are not PBS migrants and provisions of s.85A restricting the right to admit new evidence at the hearing do not apply to applicants for indefinite leave to remain on completion of five years residence as work permit holders.

More importantly, President of the Upper Tribunal criticized the provision of the immigration rules requiring Work Permit holder to be paid in accordance with Tier 2 guidelines as arbitrary and open to challenge, saying that where this requirement could not be met there would be a strong argument that a grant of leave to remain is required to respect the private life established ‘in the reasonable expectation of settlement if the conditions for settlement applicable on arrival were adhered to’.

This judgment will undoubtedly assist work permit holders whose employers are unwilling or unable to meet the UKBA salary standards.

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