R (Alvi) v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Carlile of Berriew QC |
| Judgment Date | 25 October 2010 |
| Neutral Citation | [2010] EWHC 2666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 October 2010 |
| Docket Number | Case No: CO/10820/2009 |
[2010] EWHC 2666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Carlile of Berriew QC
Sitting as a Deputy Judge of the High Court
Case No: CO/10820/2009
Zane Malik (instructed by Malik Law Chambers Solicitors) for the Claimant
Matthew Barnes (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 28 September 2010
Lord Carlile of Berriew QC:
Background
The Claimant [C], a 32 year old national of Pakistan, has challenged the decision of the Home Secretary[D] to refuse him leave to remain in the United Kingdom as a Tier 2 (General) Migrant worker.
The Claim concerns the points system applicable to potential migrants, introduced by the UK government in November 2008.
C asserts that he is entitled to 50 points under the heading of ‘sponsorship’ even if his occupation does not qualify as sufficient otherwise to allow him leave under the relevant list of skilled occupations.
C's occupation is as a physiotherapy assistant. He has worked in that capacity in the National Health Service.
Permission to apply for Judicial Review was granted on the 17 March 2010 by Ian Dove Q.C., sitting as a Deputy Judge of the High Court. Permission was granted on a single ground, namely:
“… whether [D's] decision is irrational and unlawful as [C] actually fulfils the requirements of Paragraph 245ZF(e) of the Immigration Rules and is entitled for 50 points under Appendix A.”
The history
C entered the United Kingdom as a student on the 20 September 2003, with leave to remain until the 31 January 2005. On the 10 January 2005 his leave to remain was extended until 10 February 2009, but as a work permit holder. Since then he has not had leave to remain.
On the 9 February 2009 he applied for further leave to remain as a Tier 2 (General) Migrant. His application was certified as invalid, but on the 24 March 2009 he re-submitted his application. It was refused by D on the 18 June 2009.
On the 21 September commenced Judicial Review proceedings in respect of D's refusal of the 18 June. On the 12 October 2009 D filed an Acknowledgment of Service, requesting the Court to defer the permission application, pending discussions between the parties.
On the 9 February 2010 D issued a new refusal letter, which replaced the earlier refusal of the 18 June 2009. I note that the Deputy Judge, when granting permission to apply for Judicial Review, did not have the new refusal letter before him.
The Judicial Review application having continued, D filed detailed Grounds of Resistance on the 6 July 2010.
The Main Legislative Framework
The Immigration Rules have their origin in the Immigration Act 1971 section 3(2). The current Rules HC395 have been changed and corrected scores of times since they were first promulgated in the 1993–4 Parliamentary Session.
The relevant provision for current purposes is Paragraph 245ZF.
“Paragraph 245ZF. Requirement for leave to remain.
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 … the applicant must have a minimum of 50 points under paragraphs 85–92 of Appendix A …”
So far as relevant, Appendix A provided at the material time:
“Attributes for Tier 2 (General) Migrants
59. An applicant applying for entry or leave to remain as a Tier 2 (General) Migrant or as a Tier 2 (Intra-Company Transfer) Migrant must score 50 points for attributes.
60. Subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10.
61. Available points for leave to remain are shown in Table 11 for an applicant.
(b) who has, or was last granted, entry clearance, leave to enter or leave to remain as a Qualifying Work Permit Holder, provided that:
(i) the Sponsor is the same person who was issued with a work permit in the in respect of the application when he was last granted leave, and
(ii) the job that the applicant is being sponsored to do is the same as the one in respect of which the work permit was issued when he was last granted leave, subject to any notification of a permissible change to the details of that employment as defined in United Kingdom Border Agency guidance,
62. Notes to accompany Table 10 and Table 11 appear below the respective tables.
Table 10
Sponsorship
63. In order to obtain points under any category in the ‘Sponsorship’ column, the applicant will need to provide a valid Certificate of Sponsorship reference number for sponsorship in the sub-category of Tier 2 under which he is applying.
64. A migrant cannot score points for sponsorship from Tables 10 or 11 if the job that the Certificate of Sponsorship Checking Service entry records that he is being sponsored to do is as a Sports person or a Minister of Religion.
65. Points can only be scored for one criterion in the sponsorship column. For example, if a company brings in an intra company transferee after applying the resident labour market test to the post, the migrant will receive either 25 or 30 points, depending on the category he is applying under, not 55.
66. A Certificate of Sponsorship reference number will only be considered to be 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 entry clearance or leave to remain (that is, as a Tier 2 (General) Migrant or a Tier 2 (Intra-company Transfer) Migrant).
67. A Certificate of Sponsorship reference number will only be considered to be valid if:
(a) the Sponsor assigned that reference number to themigrant no more than 3 months before the applicationfor entry clearance or leave to remain is made,
(b) the application for entry clearance or leave to remain ismade no more than 3 months before the start of theemployment as stated on the Certificate of Sponsorship,and
(c) that reference number must not have been cancelled bythe Sponsor or by the United Kingdom Border Agency sinceit was assigned.
68. The migrant must not previously have been granted entry clearance, leave to enter or leave to remain relying on the same Certificate of Sponsorship reference number.
70. In order for the applicant to be awarded points for a job offer in a shortage occupation, the job must, at the time of Certificate of Sponsorship was issued, have appeared on the list of shortage occupations published by the United Kingdom Border Agency, and contracted working hours must be for at least 30 hours a week. Furthermore, if the United Kingdom Border Agency guidance indicates that the job appears on the ‘Scotland only’ shortage occupation list, the job offer must be for employment in Scotland.
Table 11 Qualifications
Sponsorship
Points
Qualifications
Points
Prospective earnings
Points
Transitional arrangements apply (see below)
50
None, or below an appropriate sub degree level qualification
0
Below £17000
0
[The remainder of the Table shows the points available for, e.g. degree level qualifications and higher earnings]
Notes
Sponsorship
81. Paragraphs 63 to 68 and 70 apply
82. 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.
(ii) the applicant is a Senior Care Worker or an Established Entertainer, and
(b) (unless the applicant is an Established Entertainer) the salary 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 the list of skilled occupations referred to in (a) (i)
83. In order to score points in the transitional arrangements category, the applicant must meet the following requirements:
(a) the applicant must have, or have been granted, entry clearance, leave to enter or leave to remain as:
(i) a Qualifying Work Permit Holder,
…
(b) unless the applicant is a senior Care Worker or an Established Entertainer, the Sponsor must be the same person for whom the applicant was working or intending to work when last granted leave. In the context on an applicant whose last grant of leave was as a Qualifying Work Permit Holder, this means that the work permit must have been issued to the same employer as the applicant is applying to work for now,
(c) unless the applicant is a Senior Care Worker or Established Entertainer, the job that the Certificate of Sponsorship Checking Service entry records the applicant as having been engaged to do must be there [sic] same job: an [sic]
(i) in respect of which the previous work permit was issued, in the case of an applicant whose last grant of leave was as a Qualifying Permit Holder.
The Claimant's Case
C's work permit allowed him to work as a physiotherapy assistant. His application for leave to remain as a Tier 2 Migrant stated that he would continue in the same job with the same employer. Therefore, it is argued on his behalf, it follows that Paragraph 61(b) of Appendix A...
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