In this article, Jacqueline Moore, looks at a recent decision of the Upper Tribunal (Tukhas (para 245 HD(f): "appropriate salary"), where it was held that unless, an employee has contracted weekly hours or is paid on an hourly basis, their gross annual salary should be taken as their level of salary for the purposes of awarding points for salary level.
The Points Based System was meant to be easy to understand and user-friendly. It was said at the time, that it would be so simple, that it could be understood by a six-year-old!
The scheme as every experienced Sponsor and advisor is aware, is neither simple nor clear and is in fact ridden with perils. A good example of how un-user friendly and at times illogical the whole PBS system can be, is the current Home Office policy on assessing salary levels in respect of Tier 2 (General) applications.
It's worth explaining how the system works first, so that the decision from the Immigration Tribunal can be viewed in its proper context.
In order for an employer to assign a Certificate of Sponsorship (CoS) to a migrant, the employee must be paid at a minimum level, which is the higher of £20,800 (minimum level for all Tier 2 positions) or the minimum level as set out in the SOC code for that particular role.
The onus is on the employer to consider the SOC codes, and to decide which SOC is the best match for the role. Employers beware, the Home Office can themselves question this assessment and so employers need to be able to justify that the right SOC code has been identified.
Once a SOC code has been identified, the employer then through their SMS system, completes an online form to assign the CoS. This to the uninitiated can seem like a fairly pain-free process, it takes only around 10-15 minutes to complete the online form, and with the press of a button assign the CoS.
Although Tier 2 positions are for skilled salaried positions, the online form has a mandatory field, which requires the employer to state the number of hours of working. The field description does advice (in very small font) that only working hours are to be included.
The devil is in the detail here, as many employers often miss this, and although they may not pay for a lunch break, they will input the businesses working hours. So to use this example, an employee may work in an office with core working hours of 9-5pm. The employer will input 40 hours as opposed to the 35 hours that the applicant is paid to work.
This mistake could turn out to be very costly for all concerned. For when the Home Office assess the CoS as part of the migrant's Tier 2 application, they will, look to the SOC codes to determine the working hours per week for that particular role, and they will then pro rata the hours. So for an employer paying the minimum level on the SOC code, if they state 40 hours, and the Home Office, pro rata this based on a 39 hour week, this will result in the salary being paid at less than the minimum level, no points will then be awarded for salary level and the Tier 2 application will be refused.
This is exactly what happened in the case of Turkhas. In Turkhas the appellant's Tier 2 application was refused on the basis that she was awarded no points for salary after the Home Office pro-rated her salary based on the fact that her employers stated she worked a 40 hour week.
Ms Turkhas lost her appeal before the First-tier Tribunal who found she did not meet the terms of the Immigration Rules. This was then appealed to the Upper Tribunal with Ms Turkhas arguing that she did meet the Rules: her gross salary met the required salary level. Her position that this is all that was required on a proper interpretation of the Immigration Rules.
Interestingly, at the Upper Tribunal, the Home Office Presenting Officer conceded that this argument was correct. This concession was welcomed by the Upper Tribunal, who went on to put the matter beyond doubt, stating that the interpretation of the rules was "clear", namely unless someone has contracted weekly hours or is paid at an hourly rate, the appropriate salary for the purposes of the Rules is the gross annual salary.
For many, who see the end of the FTT's jurisdiction over PBS applications, as a negative for Sponsors and migrants, this case serves to exemplify that point. It is often only the intervention by the Court which can bring about a change to the Home Office' misinterpretation of the Immigration Rules.
A word of caution though, for Turkhas to bring the relief that it ought to it will require case-workers to be aware of its existence and to act in accordance. If you are reading this and are about to assign a CoS, our advice is not to rely on Turkhas, but instead to exercise caution and ensure that you input the hours worked carefully, checking the working hours per week that the Home Office will rely on. If necessary, a Sponsorship note can be added to explain the position.
Our Glasgow Immigration Team are very experienced in all Business Immigration issues, to get in contact with Jacqueline Moore, Janey Armstrong or Blair Melville please call 0141 332 0086.