Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Owolabi (Tier 2 – skilled occupations) Nigeria [2011] UKUT 00313(IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21 December 2010

18 July 2011

Before

MR JUSTICE BLAKE, PRESIDENT
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE PERKINS

Between

MR ADEGOKE FESTUS OWOLABI

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr O Ngwuocha, Solicitor
For the Respondent: Ms F Saunders, Home Office Presenting Officer

The relevant provisions of the Immigration Rules dealing with Tier 2 (General) Migrants, were first laid before Parliament on 4 November 2008 and came into effect on 27 November 2008. The fact the UKBA list of skilled occupations, which is referred to in paras 69 and 82 of Appendix A to the Rules, was not placed on UKBA’s website until 28 November i.e. 24 days after Appendix A was laid before Parliament, together with the fact that such a list was capable of being amended by the Secretary of State, means that reliance by the respondent on the requirements set out in para 69 was unlawful: Pankina [2010] EWCA Civ 719 and R (on the application of Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681 applied. (This decision does not address the implications of the amendment made to para 69 by HC382 which came into effect on 12 August 2010.)

DETERMINATION AND REASONS

1. The appellant, a citizen of Nigeria, came to the UK in June 2008 under the Highly Skilled Migrant Programme. Within his existing leave he applied on 25 November 2009 for leave to remain as a Tier 2 (General) Migrant. Tier 2 is for skilled workers with a job offer to fill gaps in the UK labour force.

2. With his application form the appellant and his sponsor had submitted a Certificate of Sponsorship (CoS) whose details stated that his sponsor was IKUT and Associates UK, based in Ilford, Essex, his job title was “field immigration administrator” and his job type was “2419 Legal professional not elsewhere classified”. The same CoS document gave the following summary of his job description:

“To provide to the general public UK immigration information such as: provision of basic immigration information and legal documents. Gathering various documentations and information for prospective clients as requested. Undertake a variety of projects from time to time, as directed by the Immigration Adviser and/or related assignments to the work of the Company, Internet research and prepare presentations and reports to prospective clients.”

3. This document also stated that he earned £24,000 for a 35 hour week, calculated to be £13.18 per hour, that his job was at N/SVQ level 3 or above and that the sponsor had met the resident labour market test.

4. On 8 February 2010 the respondent refused his application because it was considered he could not be awarded the requisite points under Appendix A of the Immigration Rules HC395 as amended dealing with Attributes. Noting that the salary quoted on the appellant’s CoS for the given occupation code (code 2419) was £34,000 for a 35 hr week, equivalent to £13.18 per hour, the respondent observed that:

“[a]ccording to the Codes of Practice occupation code 2419, this should be at least £13.73 per hour [which works out as] £24,988.60 for a 35 working week. As this salary is not at or above the minimum rate as published in UKBA guidance, your employer has not complied with Codes of Practice and we are unable to award any point under the sponsorship criteria. “

5. The appellant appealed arguing (1) that the respondent’s decision was not in accordance with the Immigration Rules for the reason that the guidance referred to was not specified in the body of the Rules and was not in existence as at the date of the relevant change to the Rules; (2) that the respondent had been wrong to classify his job as “Legal professional not elsewhere classified” and (3) that since publicity on the Tier 2 system avowed that the system was “flexible” and would allow customers to correct minor omissions, the respondent was wrong not to have considered she therefore had discretion to grant his application.

6. In a determination notified on 21 April 2010 Immigration Judge (IJ) Bruce expressed her sympathies for the appellant, his Tier 2 sponsor as well as with the UKBA staff “who are tasked with administering this labyrinthine system”, but went on to dismiss the appeal. The IJ ruled that the option for Tier 2 sponsors to amend applications was there so mistakes could be rectified but the appellant was not arguing that a mistake had been made when he said he was earning £24,000 per annum for a 35 hour week. Further, the IJ concluded that the Rules admitted no discretion in relation to the levels fixed for prescribed earnings.

7. The appellant’s application for permission to appeal sought mainly to rely on and amplify (2) above. It was argued that the IJ was wrong to accept the respondent’s classification of the appellant’s job under Code 2419 (“Legal professionals not elsewhere classified”). The IJ should have understood that the respondent’s decision, in so far as it related to the classification of his work as legal, rather than administrative, involved an exercise of discretion and that being the case, should have decided to exercise his discretion differently (presumably so that the appellant’s level of income would not have needed to be as high as it was for Code 2419). It was argued that it was “inconceivable that a role, which does not involve any legal work or legal advice, can properly be classified as that of a legal professional”. Adverting to the appellant’s Ground (1), the Upper Tribunal’s grant of permission to appeal considered that in the light of Pankina [2010] EWCA Civ 719 it was arguable that the IJ was wrong to find the appellant could not succeed under the Immigration Rules because he did not meet the earnings levels specified in policy guidance, although it could not be excluded that the guidance in this case was akin to that found lawful in R v Secretary of State for Social Services, ex parte Camden LBC [1987] 1 WLR 819.

8. At the hearing we received further documents and also heard submissions from both representatives. It soon became apparent to us that we did not have sufficient information before us to determine the appeal and we therefore directed that the respondent furnish further information and submissions with provision for a response from the appellant’s representatives.

9. In the event the respondent’s reply to directions was delayed due to the illness of Ms Saunders but was eventually received by us on 20 January 2011. We regret the delay that has ensured thereafter in determining this appeal. Shortly before we were ready to promulgate our decision we became aware of the Court of Appeal’s judgment in R (Alvi) [2011] EWCA Civ 681 published on 6 June 2011. We considered whether to invite specific submissions as to the implications of this case for our own case but decided this was unnecessary and that further delay was undesirable.

10. The respondent’s reply to Tribunal Directions produced inter alia the Standard Occupational Classification (SOC) codes of practice summary table which was valid from 15 June 2009 until 1 March 2010, which was said to contain a list of all SOC codes used by UKBA. In addition to identifying a number of relevant dates (e.g. when the relevant Immigration Rules had been brought into force, when the codes of practice had been first posted on the UKBA website) the reply made two main points:

a. “Using the job description on the CoS as a guide and comparing it to job descriptions on the summary table (which contains “thousands of job titles”), SOC code 3520, Legal Associate Professionals may be more appropriate to the role of the applicant. It is classified as a skilled job and the migrant’s salary would be at or above the appropriate rate for the job”.

b. However, where there is no direct SOC code on the list of all SOC codes used by UKBA “a sponsor is required to select the SOC code that nearest matches the job that the applicant is to do”…[A] caseworker is not required to check whether a sponsor has noted the most appropriate SOC code on the CoS. He is only required to check whether the job indicated on the CoS, that is as summarized by the SOC code, is described as being skilled on the summary list above. It is the sponsor’s duty to ensure that the correct SOC has been indicated on the CoS. The sponsor in this case had indicated 2419 and whether SOC code 2419 is appropriate is not a matter that a caseworker is required to consider.

11. In response the appellant’s representatives stated that in para 69 of Appendix A of the Immigration Rules the term “job” was to be understood by reference to “job tasks” as shown in the job description, rather than the job title and the term “occupation” must refer to relevant job tasks of associated job titles (the list which is not exhaustive). The requirement cannot, in the light of the express provisions of para 69(a) be read as being dependent on whether the sponsor has indicated a particular occupational classification code. Further it could not be said that the SOC code of practice (containing a list of skilled occupations) was to be used exclusively or primarily by the Sponsor (rather than by the caseworker).

The legal framework

12. We set out the relevant legal provisions as they were before amendments were made by HC382 on 22 July 2010 by HC which took effect on 12 August 2010. Para 245ZF(e) of the Immigration Rules provided:

"To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:….
(e) If applying as a Tier 2 (General) Migrant or a Tier 2 (Intra-Company Transfer) Migrant, the applicant must have a minimum of 50 points under paragraphs 59 to 84 of the Appendix A".
13. Appendix A, dealing with Attributes, requires an applicant to have a valid certificate of sponsorship (CoS). Points are scored by reference to Table 10. Para 69 stated:
“No points will be awarded for sponsorship unless:
(a) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agency's list of skilled occupations, and
(b) the salary (which for these purposes includes such allowances as are specified as acceptable for this purpose in guidance issued by the United Kingdom Border Agency) that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job, as stated in guidance published by the United Kingdom Border Agency.
14. Para 71 stated:
“In order for the applicant to be awarded points for a job offer that passes the resident labour market test, the Certificate of Sponsorship Checking Service entry must indicate that the Sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job.”
15. Para 79, which deals with Prospective Earnings, stated:
“The points awarded for prospective earnings will be based on the applicant's gross annual salary (including such allowances as are specified as acceptable for this purpose in guidance issued by the United Kingdom Border Agency) to be paid by the Sponsor, as recorded in the Certificate of Sponsorship Checking Service entry to which the applicant's Certificate of Sponsorship reference number relates.”
16. Also relevant is para 82 which in its relevant parts stated:
“No points will be awarded for sponsorship unless:
(a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agency's list of skilled occupations, or…”
Relevant case law
17. It is convenient if we recite the recent summary of the two main cases on the PBS as set out in R(Alvi), together with our own brief summary of the latter. In R (Alvi) Jackson LJ states:
“35. In Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376, the Secretary of State relied on paragraph 2 of Appendix C of the Immigration Rules. This paragraph required that an applicant for leave to remain and work in the UK should have £800 and should provide the documents specified. The rule then added "and must also have had those funds for a period of time set out in the guidance specifying specified documents for that purpose." (Those words are not quoted in the judgment in Pankina. However, they are quoted in paragraph 57 of the judgment of Mr Justice Burton in The Queen on the Application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department [2010] EWHC 3524 (Admin).) During the period when Appendix C was laid before Parliament the Secretary of State published guidance which specified the documents to be provided. These were bank and building society documents showing that the applicant had held £800 continuously for 3 months. The Court of Appeal held that an applicant satisfied the requirements of Appendix C if he possessed £800 on the date of his application. The additional requirement to have held that money for a period of 3 months did not form part of the Immigration Rules and was not binding.
36. Sedley L.J., with whom Rimer and Sullivan LJJ agreed, gave the leading judgment. His reasoning was as follows. It can be seen from a review of legislative history that the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. The provisions of the Immigration Rules relied upon by the Secretary of State in Pankina were laid before Parliament on 9 June 2008. The guidance document, which the Secretary of State published shortly afterwards, purported to impose an additional requirement not mentioned in the rules, namely that the sum of £800 should be held for a period of 3 months. That additional requirement had not been subject to the process set out in section 3 (2) of the 1971 Act. Accordingly it could not be relied upon to shut out an applicant who otherwise satisfied the requirements of paragraph 2 of Appendix C to the Immigration Rules.
37. Sedley L.J. accepted that a statutory instrument may refer to "an extant and accessible outside source". Thus in the field of Social Security a statutory instrument may fix benefits by reference to a directory separately published by the Secretary of State. But it is not possible for rules to supplement themselves by further rules derived from an extraneous source. Thus there were two objections to the additional requirement in Pankina. First that additional requirement had not been laid before Parliament for 40 days or made subject to the negative resolution procedure. Secondly, that additional requirement could be varied at the will of the Secretary of State. Sedley LJ observed at paragraph 29:
"It means that a discrete element of the rule is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule maker."
38. In The Queen on the Application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) the Divisional Court held that limits imposed in May 2010 on the numbers of applicants who may enter or remain in the UK under Tier 1 (General) or Tier 2 (General) of the PBS were unlawful. Sullivan LJ, with whom Burton J. agreed, gave the leading judgment. Sullivan LJ noted that the proposed amendments to the Immigration Rules would give Parliament the power "not merely to determine the limits for Tier 1 and Tier 2 and incorporate those limits into the rules by cross reference to the UKBA website and PBS guidance in existence at the time, but also to be able thereafter to alter them at will by making such alterations to the website and/or the guidance as she saw fit". Following Pankina, Sullivan LJ held that such a provision in the Immigration Rules would be of no effect. At paragraph 40 Sullivan LJ said:
"It would frustrate that statutory purpose if the Secretary of State was able to lay before Parliament a change in the rules, which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion. Far from giving effect to the statutory purpose, such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act."
39. I should also set out paragraph 43 of Sullivan LJ's judgment, since that paragraph has been the subject of some debate in the present appeal. At paragraph 43 Sullivan LJ said:
"I readily accept that there is a spectrum and that in enacting section 3 (2) Parliament did not intend that every alteration to the Secretary of State's practice, however minor should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be as admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2, whether the limits are 6, 60, 600 or 6,000 per month or per year are precisely the kinds of substantive changes that should be laid before Parliament. They are most certainly to be equated with UKBA's list of skilled occupation which are very much at the other end of the spectrum."
18. In R (Alvi) itself the applicant was also challenging a refusal of a decision made to refuse him leave to remain as a Tier 2 (General) Migrant. He had specified in his application that the job for which he sought permission was as an assistant physiotherapist. The respondent stated that this job title did not meet the job role that is above NVQ or SVQ level 3 and that “The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have therefore not been awarded any points under certificate of sponsorship” (para 20). The applicant’s grounds were that he had satisfied the requirements of para 245ZF(e) and that the Secretary of State could not lawfully rely on published guidance (1) because it was not part of the Immigration Rules; and (2) it had not been laid before Parliament for 40 days. The respondent placed reliance on the fact that the List of Skilled Occupations which UKBA had been published on 28 November 2008 by placing it on its website, arguing that the applicant could not meet the requirements of para 82(a)(i) of Appendix A to the Immigration Rules because the applicant’s occupation as an Assistant Physiotherapist was not on the list.
Our assessment

19. It is convenient to refer to the appellant’s three original grounds of appeal albeit we bear in mind of course the (mostly helpful) submissions we had from both representatives both at the hearing before us and in response to Tribunal directions made straight after the hearing. Leaving Ground 1 till last, we begin with ground (2), which concerns the issue of the occupational classification of the appellant under the SOC Codes of Practice occupation code 2419, as this has been the main focus of the submissions.

Ground (2)

20. Despite the grounds of appeal taking issue with the respondent’s occupational classification of the appellant as a “Legal professional not elsewhere classified” (contending that the respondent had a choice), the IJ did not address that issue. That omission means that the determination failed to make clear to the appellant why his grounds were rejected. In order for this to amount to an error of law, however, we would need to be satisfied that the choice of his occupational classification was a matter for the respondent. The appellant clearly considers it was and that it was for the respondent to match the job description given by the appellant to the appropriate occupational code. The fact that the respondent has now accepted in response to Tribunal directions that there was/is a more appropriate occupational code match for the appellant’s job –Associate legal professionals - might appear to vindicate the appellant’s view.

21. We are not persuaded, however, that in terms of the requirements of the Immigration Rules the appellant’s occupational classification was a matter of choice for the respondent. The Immigration Rules make clear that in order to qualify for the requisite number of points under Appendix A, an applicant must provide a valid CoS reference number for sponsorship in the sub-category of Tier 2 under which he is applying (para 63). A CoS reference number will only be considered valid if the number supplied links to a Certificate of Sponsorship Checking Service entry that names the applicant as the migrant and confirms that the Sponsor is sponsoring him in the Tier 2 category indicated by the migrant in his application for leave to remain as a Tier 2 (General Migrant) (para 66). The Sponsor must have assigned that reference number to the migrant no more than 3 months before the application for leave to remain is made (para 67(b) and the application for leave to remain must have been made no more than 3 months “before the start of the employment as stated on the Certificate of Sponsorship” (para 67(b) (emphasis added)).

22. These provisions unambiguously make clear that it is for the migrant to indicate the Tier 2 category in his application and that this must correlate with the employment/job as stated on the Certificate of Sponsorship. But the employment/job as stated by the appellant’s employer in the CoS ( which contains standard headings asking for job title, job type, summary of job description, gross pay, frequency of pay, etc.) was:

“Job title: FIELD IMMIGRATON ADMINSTRATOR
Job type: 2419 Legal professional’s n.e.c.”

23. It is true that under the next entry, “Summary of job description” the employer had set out the same description given in the appellant’s contract of employment, but the plain fact is that (1) it was the sponsor employer, not the respondent who chose the job type and who specified 2419 Legal professional’s n.e.c.”; and 2) all the respondent did was record that entry and thereby treat it as the basis for consideration of the application.

24. The appellant’s submissions have sought to argue that in view of the fact that the CoS details supplied by his employer gave a detailed summary of his job description, in the context of deciding the application made under the Immigration Rules it was ultimately a matter for the respondent to decide whether the classification specified was the correct one. That cannot be regarded as a fanciful submission since from a common sense point of view it might seem odd to leave entirely to a sponsor to choose the job type when there may be instances where sponsors seek falsely to represent that an applicant is doing a specific job on the UKBA list of skilled occupations just to help applicants.

25. Common sense, however, is not necessarily a feature that pervades the Immigration Rules dealing with the PBS system as we know it. And as a matter of construction we can find nothing in the relevant provisions of Appendix A to support the appellant’s submission. Not only do they make clear that the employment must be as stated by the Sponsor but they also particularise that the respondent’s response is made by an agency called the CoS Checking Service and that its role is confined to (i) recording the relevant job (para 69(a) refers to “the job that the CoS Checking Service entry records that the person is being sponsored to do”); (ii) checking that it appears on the UKBA list of occupations skilled to National Qualifications Framework level 3; and (iii) confirming that the salary recorded by the same Service is at or above the appropriate rate for the job as stated in guidance published by the UKBA. For applicants such as the appellant whose Sponsor states that they have met the requirements of the resident labour market test, the Service entry is also required, (iv),to check that the Sponsor had met the requirements of that test, as defined in guidance published by the UKBA “in respect of that job” (para 71). The above tasks to be performed by the CoS Checking Service are all about ticking boxes, not making independent assessments.

26. The respondent in response to Tribunal directions maintains that nothing in the relevant provisions of the Rules authorises the caseworker to choose the appropriate occupation or review the specification given by the Sponsor. They maintain further that caseworkers are only assessing whether the details on the CoS conform with the details on the relevant code of practice in respect of specified matters such as whether the salary paid will be at least as much as the appropriate rate set out in the relevant code of practice. For reasons we have already given, we find the respondent’s submissions on this issue entirely accurate. The conclusion to which we are driven is that despite the fact that the FTT failed to address the appellant’s main argument, Ground (2) does not to show that the IJ erred in law.

27. We would observe, however, that the analysis we have just given is confined to the basis on which Ground (2) was advanced before us, namely as a challenge to the meaning of the relevant immigration rules. We do not rule out that in terms of our “in accordance with the law” jurisdiction a failure on the part of the respondent to consider a different job classification might in certain circumstances conflict with the duty to act fairly. But that was not the basis on which Ground (2) was made and the conclusions we reach below on Ground (1) mean that there is no need for us to consider the matter in any event.

28. It is convenient next to deal with Ground (3).

Ground (3)

29. Ground (3) concerns the matter of whether the IJ gave due attention to the respondent’s avowal of its PBS system, Tier 2 in particular, as a “flexible system”, as stated by the Home Office Press release dated 7 August 2009 which was produced by the appellant. It will be apparent from what we have said earlier that the relevant provisions of the Immigration Rules do not confer any discretion on caseworkers and that points can only be awarded if the criteria set out in the Rules are met in full. It may well be that the PBS scheme has some flexibility in certain other respects, allowing for example, sponsors and applicants to correct mistakes, but neither the appellant nor his sponsor sought to correct any of the relevant details they had submitted in respect of the appellant save by later alleging as a ground of appeal that his occupation had been wrongly classified - and then only in the rather confusing context of an argument that in making a decision under the Immigration Rules it was the respondent, rather than the applicant and sponsor themselves, who was responsible for the choice of occupational code 2419. We have now established that it was the sponsor and applicant who specified code 2419, not the respondent. Further, even if this is taken as an attempt by the appellant to correct a mistake, neither the applicant nor the sponsor sought to identify any alternative occupational classification specified in the Codes of practice which they considered was more appropriate. As already observed, the Rules make quite clear that the selection of the occupational code is solely a matter for the sponsor in conjunction with the applicant. So do the Codes of practice themselves: for example on the first page of version 06/09 dealing with Section M (Professional, scientific and technical activities”), the sponsor/user is told: “Choose the SOC code that is most relevant to the job you are looking to fill and then you will be taken to a page giving you more information on the skill level, appropriate salary rate and how to meet the resident labour market test”.

30. So too does the Tier 2 policy guidance which states that “If you are unsure what SOC code applies to your occupation; you may wish to check the coding index of job titles on the Office for National Statistics website”. We cannot see in such circumstances that there was anything in the conduct of the respondent in relation to the appellant’s case that could be characterised as a failure to act or a failure to apply any permitted flexibility to his case. And, insofar as policy guidance can be source of policy more generous than the Rules, the provisions of the policy guidance relevant to the appellant’s case contain nothing fitting that description. Hence Ground (3) must fail.

Ground (1)

31. But that is not the end of the matter; there is also Ground (1) to consider. This ground contended first of all that the respondent’s decision was not in accordance with the Immigration Rules for the reason that the guidance referred to, namely the SOC codes of practice, was not specified in the body of the Rules and was not in existence as at the date of the relevant change to the Rules.

32. Whist not agreeing with this ground as it stands, we consider it right in asserting that the relevant provisions of the Immigration Rules as applied to this appellant includes ones that were unlawful.

33. So far as we can ascertain, the relevant parts of the Rules refer to two extraneous sources: UKBA policy guidance (para 69(b) and para 70) and a UKBA list of skilled occupations (para 69(a), 82). There is no reference as such to codes of practice although they are referred to and identified in the policy guidance. Paragraphs 219-221 of that guidance state that the sponsor must pay the migrant at the appropriate rate for the job and that when advertising the vacancy, it must be advertised at, or above the appropriate rate for the job, and those rates are set out in Standard Occupational Classification (SOC) codes of practice.

34. Where does that leave matters relevant to the appellant’s case? According to the information provided by the respondent in response to our directions, the relevant provisions of the Rules (para 69 in particular) were first laid before Parliament on 4 November 2008 and came into effect on 27 November 2008. The codes of practice referred to in the Rules were first posted on the UKBA website on 17 September 2008, i.e. on a date prior to, not post, the relevant provisions of the Rules. (The codes of practice have been updated periodically since, although in respect of the occupations of possible relevance to the appellant’s case, the version 11/09 which was in force at the date of decision was not materially different from the original version 06/09.). So it would appear that at least in temporal terms the codes of practice were a source that was Pankina-compliant. Whether they were also Pankina-compliant in substantive terms is another matter. From our earlier summary of case law, it can be seen there has been a discussion as to whether reliance on extraneous sources is unlawful if all those sources do is provide the means of proving eligibility by reference to publicly available classifications and the like. In the R (on the application of the JCWI) [2010] EWHC 3542 (Admin) Sullivan LJ noted that the court in Pankina did not say that reliance on extraneous sources was always unlawful and he suggested that whether it was would depend upon where a particular case fell along a spectrum, with substantive changes being at one end and non-substantive changes being at the other end. Indeed he then gave the UKBA’s list of skilled occupations as a possible example of cases at the non-substantive end of the spectrum. However, in R (Alvi) at para 40 Jackson LJ doubted whether the list of skilled occupations belonged at the non-substantive end of the spectrum. From this survey we can see that there is at least an argument that sources such as SOC codes and practice and UKBA lists of skilled occupations are concerned with the means of proving eligibility rather than setting out additional substantive criteria. However, we do not need to resolve this matter in this case. That is so for the following reasons.

35. As already noted, in order to comply with para 69 an applicant has to show not just that the salary is at an appropriate rate (by reference to codes of practice) but also that the job is on the UKBA list of skilled occupations. The respondent’s reply to directions does not tell us anything about when that list was placed on the UKBA website but Jackson LJ in R (Alvi) records that the UKBA list of skilled occupations was not placed on UKBA’s website until 28 November (para 11) i.e. 24 days after Appendix A was laid before Parliament (para 40). Further, Jackson, LJ adds “the list was capable of being amended by the Secretary of State.” (ibid).

36. We are left with a curious situation. In R (Alvi) the application to the appellant of para 82 of Appendix A was found unlawful because it required the appellant to show his job was at a certain level of qualification (above NVQ or SVQ level 3) even though that was not specified in the Rules. It was not necessary for the court to rule on whether such application was also unlawful for failure to meet the two requirements in Pankina relating to the need for the extraneous source to exist in advance of Parliamentary approval of the related Immigration Rules and not to be subject to alteration outside that process thereafter. But in our case we cannot avoid ruling on these two requirements.

37. Unlike the applicant in R (Alvi) it was not in dispute that the appellant’s job as specified in his CoS was on the list of skilled occupations. The respondent in this case considered that the start-point for consideration of the appellant’s application was the fact that the appellant’s job as specified in his CoS was on the UKBA list of skilled occupations. But such a start-point was unlawful because it was predicated on there being a lawfully prescribed list of skilled occupations in the first place. Yet that list had not been laid before Parliament for 40 days or made subject to the negative resolution procedure. Secondly, that list could be varied at the will of the Secretary of State. In Pankina the Court of Appeal held that such features rendered reliance on such materials unlawful.

38. Accordingly, the respondent could not lawfully decide that the appellant’s job was to be classified according to a code of practice. In turn the IJ was wrong to find that the respondent’s application of these requirements was lawful. The determination is vitiated by legal error and we set it aside.

39. The decision we substitute is to allow the appellant’s appeal.

40. We would draw attention, as did the Court in R (Alvi) at para 40, to the fact that the relevant provisions of Appendix A were amended in July 2010 (the court clearly had in mind HC382 which as already noted was published on 22 July and came into effect on 12 August 2010. To what extent those amendments have altered the legal position is not a question before us. Our conclusions are confined, therefore to the provisions of Appendix A pre-dating 12 August 2010).

41. We would also observe that as we noted earlier the Secretary of State now accepts that the relevant codes of practice contain a job type which may well match the appellant’s job description – that of “Legal Associate professional”. To repeat the relevant passage from her Reply quoted earlier:

“Using the job description on the CoS as a guide and comparing it to job descriptions on the summary table, SOC code 3520, Legal Associate Professionals may be more appropriate to the role of the applicant. It is classified as a skilled job and the migrant’s salary would be at or above the appropriate rate for the job.”

42. If we had dismissed the appeal we would have asked the Secretary of State to think very carefully about whether, even so, the appellant’s removal would be necessary or if some discretionary leave might better meet the justice of the case.

43. For the above reasons:

The FTT materially erred in law and its decision is set aside;

The decision we substitute is to allow the appeal.

Signed

Date:

Senior Immigration Judge Storey
Judge of the Upper Tribunal