Upper Tribunal 
(Immigration and Asylum Chamber)

Philipson (ILR – not PBS: evidence) India [2012] UKUT 00039(IAC)

THE IMMIGRATION ACTS

Heard at Field House, London	Determination Promulgated	
On 19 December 2011		
	…………………………………	

Before

MR JUSTICE BLAKE, PRESIDENT
UPPER TRIBUNAL JUDGE PITT

Between

				    MERCY SUSAN PHILIPSON
				PHILIPSON PULIMOOTEL PHILIP
				        MISS JEMI PHILIPSON
				       MISS JAMIE PHILIPSON
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants:        Ms Anna Watterson instructed by Joseph Thalian and Co 
For the Respondent:	Mr Peter Deller, Senior Home Officer Presenting Officer

i)	A decision on an application under rule 134 of the Immigration Rules for indefinite leave to remain is a not a points-based decision to which s.85A of the Nationality, Immigration and Asylum Act 2002 as amended by s.19 of the UK Borders Act 2007 applies.
ii)	Post decision evidence of a back-dated wage increase is admissible on appeal to demonstrate compliance with rule 134(iv).  
iii)	It is doubtful whether rule 134(iv) applies to those who never needed a certificate of sponsorship with a salary level identified in guidance relating to such certificates.
iv)	If such a person could not comply with the rules on settlement for reasons of a new salary level, there was a strong claim that leave to remain was required to respect the private life established in the reasonable expectation of settlement if the conditions for settlement applicable on arrival were adhered to, and a relatively weak case for justifying interference with such private life to promote a legitimate public interest recognised by Article 8(2) ECHR.

DETERMINATION AND REASONS

1.	  The first appellant is a citizen of India who came to the United Kingdom in May 2006 with a five year work permit to work as a care assistant with her present employers.  We shall refer to her as the claimant. The other appellants are her husband and two daughters who are her dependents. Her husband came to the United Kingdom at the same time as the claimant and her daughters were born here in 2008 and 2010.

2.	  On 5 May 2011 the claimant applied for indefinite leave to remain here under rule 134 of the Immigration Rules, as she had completed five years residence in the same capacity and her employer still wanted her to work for them. 

3.	   On 18 June 2011 this application was refused by reference to rule 134 (iv) that had been inserted into the Immigration Rules by HC 863 as from 6 April 2011.  This rule required the claimant to provide evidence from her employer that her rate of pay was equal to the sums set out in the Tier 2 guidance for the occupation in question. Although she had been given a wage increase since arrival here in 2006, the rate of pay identified in the application was less than the rate in the guidance.

4.	   The claimant appealed on 23 June and attached to the grounds of appeal was a letter from the employer dated 18 June 2011 awarding the claimant a pay increase to a level that met the Tier 2 guidance and backdating this to 23 May 2011.

5.	   It was agreed by the parties that if this letter was admissible evidence in the claimant’s appeal, then she met all the requirements of rule 134 and she and her dependants should be granted indefinite leave to remain.

6.	   The evidence would plainly be admissible under s. 85(4) of the Nationality, Immigration and Asylum Act (NIAA) 2002, as it was relevant to the substance of the refusal decision even though the evidence came into existence post decision.

7.	   Judge Vaudin D’Imcourt sitting in the First-tier Tribunal decided that the evidence was not admissible in the appeal before him. He did so by reason of his interpretation of s. 85A of NIAA 2002.

8.	  On 23 May 2011 s. 19 of the UK Borders Act 2007 came into force, enacting s. 85A of the 2002 Act. This section amended s. 85 by dis-applying s.85(4) where three cumulative conditions are made out:  i) the immigration decision is a refusal of leave to enter or remain; ii) the decision concerned an application identified in the rules as requiring to be considered under the  Points-Based System (PBS) and iii) the appeal relies wholly or partly on the proposition that the decision was not in accordance with the rules, or the law or that a discretion under the rules should be exercised differently.

9.	 The judge was correct in concluding that the first and third requirements were applicable. However, he also concluded that the second requirement was met. He gives no reason for this conclusion and we were informed by Ms. Watterson who appeared both below and before us that he did so without having raised the matter with her or hearing any argument on the point. Her argument was clear and relied on the document being admitted. If the judge had doubts as to its admissibility he should have raised it with counsel who would doubtless have provided him with the assistance she has given us. As it is, this failure to act fairly has caused him to make an error of law requiring the claimant to incur the time and expense of a further appeal to us with the assistance of counsel, for which she cannot be compensated. 

10.	 It was common ground before us that the second requirement did not apply to this case. This was an application for indefinite leave to remain and not an application for leave to enter or remain under the PBS.  The mere fact that rule 134(iv) refers to the Tier 2 sponsor guidance does not make it a PBS application. We agree with these joint submissions. Indeed we fail to understand how the judge got this wrong even when acting without assistance. It follows that the Judge made a material error of law in this case. We set aside his decision and will re-make it. 

 Re-making the decision

11.	 In our judgment the evidence of the wage increase is admissible under s. 85(4) because it is relevant to the substance of the decision, namely whether the claimant met the earning condition set out in the Tier 2 guidance. Before the First-tier judge, it was submitted that as the wage increase was backdated it informed the respondent of the actual position of the claimant’s wages at the date of the decision under appeal.

12.	 We agree and since it is also agreed that if the evidence of the wage increase can be taken into account the appeal should be allowed, we reverse the decision of the judge and allow the appeal.

13.	 There are other aspects of the decision of the decision maker and the judge that concern us.  We address them here in case they arise in other decisions of this kind.  

14.	First, although we will assume for present purposes, without deciding, that there is an appropriate salary rate for the claimant’s job issued under the Tier 2 guidance on 6 April 2011 because transitional arrangements D applies to her, we are far from convinced that this is the case. Transitional arrangement D refers to those who hold a Tier 2 certificate of sponsorship and the certificate of sponsorship confirms that the holder will be working as a senior care assistant (SOC code 6115). As we understand it the claimant never needed a certificate of sponsorship because she came under the old system and not the new PBS one and accordingly never held one.  If there was no guidance as to the salary level applicable to her, then rule 134(iv) would not apply and her claim to settlement should have been granted without more.

15.	Second, the decision-maker went on to consider discretionary factors to warrant any further leave to remain.  A one stop notice was served but no removal decision was taken engaging rule 395C of the Immigration Rules before the case came to the judge on appeal. There is therefore a degree of segregation of the decision that the Court of Appeal has recently affirmed to be unfair in the decision of Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320.  That is significant because if consideration had been given to Immigration Rule 395C there were in our judgment compassionate reasons to conclude that the appellants should have been allowed to remain rather than require them to leave the United Kingdom and the judge on appeal could have concluded that the discretion should be exercised differently. Indeed we would have found there to be very compelling reasons indeed to allow her to remain for reasons we set out below.

16.	This was a claimant who was admitted under a work permit valid for five years when at the time of her admission and throughout nearly the entirety of her stay here the Immigration Rule 134 indicated that if she abided by the terms of the work permit and did not act in a manner contrary to public policy she would be entitled to indefinite leave to remain at the end of the five year period.  One month before the conclusion of the five year period, the settlement requirements were amended to impose a novel requirement of a wage that met the minimum set out in guidance to Tier 2 sponsors.

17.	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. 

18.	We recognise that the general rule is that decisions on variations of leave are decided under the terms of the Immigration Rules in force at the time of the decision, and to that extent no one can have complete confidence that they will succeed in an application for indefinite leave to remain as they cannot know what the Rules will be and what transitional provisions are made.  However, the claimant was admitted in a class of migrants who were eligible for settlement at the time, and transitional provisions ensured that work permit holders could obtain indefinite leave to remain.  

19.	 Third, the judge dismissed the Article 8 appeal. He concluded that so far as the minor appellants were concerned returning the whole family to India would not be contrary to their best interests. He considered the decision of CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC) and concluded that a failure to comply with the Rules was the decisive consideration in this case. The appellants had no expectation of being allowed to settle in the United Kingdom. Article 8 cannot be used a general waiver of the immigration rules.

20.	We are surprised by this decision.  While the judge might well have been entitled to conclude that the immigration decision did not interfere with the right of respect for family life, because there was no question of the family members being separated, there was in our judgment private life established in this country when the claimant and her family had relocated from India on the understanding and belief that she was being admitted under a rule that would allow them to remain indefinitely in the United Kingdom. She had an expectation of permanent residence in the UK if she continued to meet the conditions of the work permit. In our judgment that was a legitimate and reasonable one having regard to the nature of the rules throughout her stay. Although it was not a legal right or an indefeasible expectation because policy could always change, we would normally expect transitional provisions to be made in the in cases where a person is encouraged to leave their own country to take on a demanding and very low paid job as a care assistant. In our judgment, there was private life deserving of respect. The question then arises whether interference with it is justified and proportionate.

21.	 The judge’s reasoning on this aspect of the decision is summary and given at [40] of his decision.  He relied on CDS for the proposition that Article 8 does not give judges a general discretion to dis-apply the provisions of the Immigration Rules if they are considered to have a harsh impact.  He concluded that the Secretary of State’s aim to control immigration is to be given considerable weight and in the event the interference was proportionate. 

22.	In our judgment, the judge has not directed himself properly. If he had adopted a structured approach of human rights adjudication he would have looked for a legitimate aim within the meaning of Article 8(2) and asked whether refusal of the application was a proportionate measure to pursue that legitimate aim in the factual context of this case. Controlling immigration is not a legitimate aim in itself but is certainly a means to protecting the economic and social order and the rights of others. However there was nothing in the immigration rules or generally to suggest that the claimant or her family threatened economic or social disorder or did not qualify for settlement. 

23.	The reason why the judge found that the claimant could not meet rule 134 was because he excluded (albeit wrongly) the evidence to demonstrate that she could.  However in the Article 8 case the evidence was clearly admissible for another reason as it was not going to a points based system application but a human rights claim to remain and so it was admissible under s. 85A(4)(b) and (d) even if it were to be excluded under s. 85A(4)(a) on the basis of s. 85A(3)(b). Having received the evidence under this provision he should then have considered what legitimate aim could conceivably be furthered by refusing this family who in fact met the wage conditions for settlement.

24.	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]. 

25.	It is important that where human rights issues are to be adjudicated on, the judge understands the principles to be applied justifying interferences with Article 8 rights in the light of the evidence and the issues. 

Conclusion

26.	For the reasons given above we are satisfied that the judge made a material error of law in considering this appeal both under the Immigration Rules and under Article 8. We set aside the decision.

27.	We re-make it by allowing the appeal under the Immigration Rules and direct that indefinite leave to remain be granted to the appellants. In those circumstances there is no need to make any decision on the Article 8 claim.

Signed								

Mr Justice Blake
President of the Upper Tribunal
Immigration and Asylum Chamber 

Date: 21 December 2011