Alvi, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 681

[2011] EWCA Civ 681Case No C4/2010/2680
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/06/2011
Before
SIR ANTHONY MAY PRESIDENT OF THE QUEEN’S BENCH DIVISIONLORD JUSTICE JACKSONLORD JUSTICE TOMLINSON
Between
THE QUEEN ON THE APPLICATION OF HUSSAIN ZULFIQAR ALVIAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zane Malik (instructed by Messrs Malik Law) for AppellantJonathan Hall (instructed by Treasury Solicitor) for RespondentHearing Hearing date: 10 May 2011
Judgment
[1]This judgment is six parts namely: Part 1 Introduction, Part 2 The Facts, Part 3 The Present Proceedings, Part 4 The Appeal to the Court of Appeal, Part 5 The First Ground of Appeal, Part 6 The Second Ground of Appeal. Part 1. Introduction[2]This is an appeal against the refusal of the Secretary of State to grant leave to remain to a non-EEA economic migrant.[3]The rules for granting to such migrants leave to enter or leave to remain were overhauled in 2008. The scheme for granting work permits under rule 128 of the Immigration Rules and other provisions was, in large measure, replaced by a new Points Based System (“PBS”). The PBS has a number of tiers. Tier 1 is for highly skilled workers who come from outside the EEA. Tier 2 is concerned with skilled workers with a job offer to fill gaps in the UK labour force. Tier 2 has a various sub-categories, of which the relevant one for present purposes is “Tier 2 (General)”. Each applicant under Tier 2 (General) must a have a certificate of sponsorship issued by his prospective employer, the sponsor. The UK Border Agency (“UKBA”) administers the PBS on behalf of the Secretary of State.[4]Let me now turn to the legislative framework. Section 1(2) of the Immigration Act 1971 (“The 1971 Act”) provides that those not having the right of abode in the UK may live, work and settle in the UK by permission and subject to such regulation and control of their entry into, stay and departure from the UK as is imposed by the 1971 Act. Section 1(4) states that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the UK of persons not having the right of abode shall include provision for admitting persons coming for the purposes of taking employment. Section 3 (1) of the 1971 Act provides that a person who is not a British Citizen shall not enter the UK unless given leave to do so in accordance with the provisions of the Act. It further provides that he may be given leave to enter the UK or remain in the UK either for a limited or for an indefinite period.[5]Section 3 (2) of the 1971 Act provides as follows:
“ The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by the resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). ”
[6]The Immigration Rules and successive amendments to those rules have been laid before Parliament pursuant to s. 3(2) of the 1971 Act.[7]Paragraph 128 of the Immigration Rules provides:
“The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as a seaman under contract to join a ship due to leave British waters) are that he: (i) holds a valid [Home Office] work permit; and (ii) is not of an age which puts him outside the limits for employment; and (iii) is capable of undertaking the employment specified in the work permit, and (iv) does not intend to take employment expect as specified in his work permit; and (v) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; …”
[8]As explained above, the provisions of paragraph 128 have largely been replaced by the PBS.[9]Paragraph 245 ZF of the Immigration Rules provides: “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”.[10]Paragraphs 59 to 84 of Appendix A to the Immigration Rules are too lengthy for me to set out as a quotation. Instead those provisions are attached as Appendix A to this judgment.[11]It can be seen that paragraph 82 (a)(i) of appendix A to the Immigration Rules refers to the UKBA’s List of Skilled Occupations. This List was placed on UKBAs website on 28th November 2008. I shall refer to this as “The List of Skilled Occupations” or “The List”.[12]Section Q of the List relates to human health and social work activities. Section Q is divided into three parts. Part 1 of Section Q lists skilled jobs, which are stated to be at NVQ or SVQ level 3 or above. Part 2 of section Q lists borderline jobs. Part 2 goes on to identify those borderline jobs which are at or above NVQ or SVQ level 3 and therefore qualify. Part 3 of Section Q lists lower skilled jobs, which are below NVQ or SVQ level 3. The opening paragraph of Part 3 explains that sponsors cannot issue certificates of sponsorship for any of these occupations. There then follows a review of individual occupations. Paragraph 3221 deals with physiotherapists. This states:
“Physiotherapists must be registered with the Health Professions Council (HPC) to practice in the United Kingdom. All jobs in this occupation code are at or above NVQ or SVQ level 3. The following jobs in this occupation code are at or above NVQ or SVQ level 3: • Assistant practitioners • Physiotherapists • Senior physiotherapists The following jobs in this occupation code are below NVQ or SVQ level 3: • Physiotherapy assistants • Technical instructors.” • Assistant practitioners • Physiotherapists • Senior physiotherapists • Physiotherapy assistants • Technical instructors.”
[13]After this review of the legislation and related materials, I must now turn to the facts. Part 2. The Facts[14]The appellant is a citizen of Pakistan, who was born on 5th November 1977. In September 2003 the appellant entered the UK as a student, with leave to remain until 31st January 2005.[15]After completing his studies, the appellant applied to remain in this country and work as a physiotherapy assistant. On the 10th February 2005, pursuant to paragraph 128 of the Immigration Rules, the appellant was granted leave to remain as a work permit holder until 10th February 2009. For the next four years the appellant duly lived in England and worked as a physiotherapy assistant. He was employed by Kensington Clinic in London W.8.[16]As outlined in Part 1 above, the new PBS came into operation during 2008. On 9th February 2009 the appellant applied for leave to remain in the UK as a Tier 2 (General) Migrant. The appellant’s employers, Kensington Clinic, duly provided a certificate of sponsorship in support of the appellant’s application. There may possibly have been a technical defect in that original application. Following correspondence between the appellant’s solicitors and the Secretary of State, very sensibly it was agreed that the appellant’s revised application dated 18th March 2009 would be treated as the relevant application. In this revised application the appellant gave the following information about his occupation:
“Job title: Assistant Physiotherapist Job type: 3221 Physiotherapists Summary of job description: Undertake support work to Physiotherapist, to aid the rehabilitation of patient, to manage own caseload; assist with the dictation notes to the patients etc… ”

Job type: 3221 Physiotherapists

[17]By letter dated 18 June 2009 the Secretary of State refused the appellant’s application, stating the following reasons:
“You have claimed 50 points under certificate of sponsorship, but the Secretary of State is not satisfied that the salary you will be paid is at or above the appropriate rate for a job at NVC level 3 or above, as stated in the guidance published by the UK Border Agency, therefore this invalidates the certificate of sponsorship. Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules.”
[18]The appellant was aggrieved by that refusal. Accordingly he commenced the present proceedings. Part 3. The Present Proceedings.[19]By a claim form issued in the Administrative Court on 21st September 2009, the appellant applied for an order quashing the Secretary of State’s decision dated 18 June 2009 and for a declaration that the appellant was entitled to remain in the UK as a Tier 2 (General) Migrant. In his claim form the appellant contended that he satisfied the points requirements of rule 245ZF(e). The appellant also contended that the Secretary of State’s reliance on published guidance not included in the Immigration Rules was unlawful.[20]The Secretary of State responded to the appellant’s claim by issuing a fresh decision letter dated 9 February 2010. The Secretary of State maintained his original decision, but stated that his reasons for that decision were as follows:
“You have claimed 50 points under certificate of sponsorship, but your clients job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. 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. Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules.”
[21]The appellant took the view that the Secretary of State’s substituted decision was flawed for the same reasons as the original decision. Accordingly the appellant maintained his judicial review claim.[22]In supporting his substituted decision and resisting the appellant’s claim, the Secretary of State placed reliance on the List of Skilled Occupations which UKBA had published on 28 November 2008 by placing it on its website. The Secretary of State argued that the appellant could not meet the requirements of paragraph 82(a)(i) of Appendix A to the Immigration Rules, because the appellant’s occupation as an Assistant Physiotherapist was not included in the List.[23]The appellant advanced two separate arguments in support of his judicial review challenge, which may be summarised as follows:(i) The appellant satisfied the requirements of paragraph 83 of Appendix A. Therefore he did not need to satisfy the requirements of paragraph 82.(ii) In relation to paragraph 82 (if that paragraph applied to the appellant) the Secretary of State could not rely upon the List, because it was not part of the Immigration Rules and had not been laid before Parliament for 40 days.[24]The judicial review claim came on for hearing before Lord Carlile of Berrriew Q.C., sitting as deputy High Court judge, on 25 October 2010. The judge did not expressly deal with the appellant’s first argument, but by implication he rejected it. In relation to the appellant’s second argument the judge held that the List was not an intrinsic part of the Immigration Rules and it did not require Parliamentary approval. The judge distinguished the Court of Appeal’s decision in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. Accordingly the judge rejected the appellant’s second argument and dismissed the claim for judicial review.[25]The appellant was aggrieved by the dismissal of his claim. Accordingly he appeals to the Court of Appeal. Part 4. The Appeal to the Court of Appeal[26]The appellant appeals to the Court of Appeal (with the permission of Sullivan L.J.) on the same two grounds that he argued below.[27]The appellant contends, first, that he satisfies the requirements of paragraph 83 of Appendix A to the Immigration Rules. Therefore he does not need to satisfy the requirements of paragraph 82.[28]Secondly, and in the alternative, the appellant argues that if paragraph 82 of Appendix A is applicable, it does not shut out his application. The basis of this argument is that the Secretary of State is not entitled to rely upon the List of Skilled Occupations referred to in paragraph 82(a)(i), because that List does not form part of the Immigration Rules.[29]I must now address these issues separately, starting with the first ground of appeal. Part 5. The first Ground of Appeal[30]Paragraphs 59 to 84 of Appendix A to the Immigration Rules are set out in Appendix A to this judgment. Their general structure is as follows.[31]In order to qualify as a Tier 2 (General) Migrant a person must, amongst other requirements, score 50 points for attributes. Applicants for leave to enter or leave to remain may acquire points under three headings, namely “Sponsorship”, “Qualifications” and “Prospective Earnings”. The points which may be scored for different categories of “Sponsorship”, different categories “Qualification” and different categories of “Prospective Earnings” are set out in Tables 10 and 11. The notes which follow each table are divided into groups headed “Sponsorship”, “Qualifications”, and “Prospective Earnings”. Some of the notes to table 10 are incorporated by reference into the notes to Table 11.[32]When paragraphs 59 to 84 of Appendix A are read as whole, their inter-relationship is clear. It can be seen that paragraphs 81 to 83 comprise notes which explain the three categories of Sponsorship set out in Table 11. Paragraphs 81 and 82 relate to all three categories of Sponsorship in Table 11. Paragraph 83 on the other hand relates only to the first category, namely transitional arrangements.[33]The provisions in Appendix A are not light reading and they require perusal more than once before their meaning becomes clear. However, once the reader has studied these provisions and the cross references or links between them, there is no ambiguity. There is no need to have recourse to jurisprudence on ambiguous legislation. Nor is it necessary to recite earlier judicial comments about how to construe the Immigration Rules. It is abundantly clear that paragraphs 81 and 82 of Appendix A apply to all applicants who are seeking to accumulate points for Sponsorship under Table 11. The fact that an applicant falls within the first category, namely transitional arrangements, does not exempt him from the requirements of paragraph 81 or paragraph 82.[34]For the above reasons, in my view the first ground of appeal should be dismissed. I must now turn, therefore, to the appellant’s second, and alternative, ground of appeal. Part 6. The Second Ground of Appeal.[35]In Pankinav 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.”
[40]Against that background let me now turn to the facts of the present case. The relevant provision is paragraph 82 of Appendix A to the Immigration Rules. This provides that no points will be awarded for sponsorship unless the proposed job appears on the List of Skilled occupations. This list was published on UKBA’s website 24 days after Appendix A was laid before Parliament. Furthermore the List was capable of being amended by the Secretary of State. Despite the observations of Sullivan LJ in the last sentence of paragraph 43 of Joint Council for the Welfare of Immigrants, I can see a case for saying that the specification of specific jobs as falling within the paragraph 82 (a)(i) is a “substantive” matter rather than a “minor” alteration to the Secretary of State’s practice. It is not, however, necessary to explore this question. In my view there can be no doubt that the governing principle set out in the List is a substantive matter. This governing principle is that all jobs which qualify under section Q are at or above NVQ or SVQ level 3. Following the reasoning in Pankina, in my view that governing principle is a requirement which must be set out in the Immigration Rules if it is to be valid.[41]Although not relevant to the present case, it should be noted that an amendment was subsequently made to paragraph 82 (a) (i) of Appendix A to meet this very point which I have identified. In July 2010 the following amendment was made to paragraph 82 (a)(i) of Appendix A to the Immigration Rules: the phrase “skilled occupations” was deleted and in its place there was substituted the phrase “occupations skilled to National Qualifications Framework level 3”.[42]Anticipating that the court may reach this conclusion, Mr Hall, for the Secretary of State, has developed a fall-back argument. This argument is that the threshold of NVQ or SVQ level3 is not a new requirement. It has always formed part of the requirements for obtaining a Home Office work permit under paragraph 128 of the Immigration Rules: see the general guidance which the Home Office issued to case workers and to employers.[43]In my view this argument cannot succeed. The general guidance issued to case workers and employers did not have the character of legal rules. Furthermore, in 2008 it remained to be seen whether the new PBS rules would retain or depart from the previous practice in that regard. The existence of certain general guidance prior to November 2008 did not relieve the Secretary of State of the obligation to specify the threshold for skilled occupations in paragraph 82(a)(i) of Appendix A.[44]Let me now draw the threads together. For the reasons set out above, in my view the appellant succeeds in his challenge to the Secretary of State’s decision dated 18 June 2009 and substituted decision dated 9 February 2010. The Secretary of State cannot rely upon the fact that the job of physiotherapy assistant is below the NVQ level 3 in order to treat the certificate of sponsorship issued by the Kensington Clinic as invalid. I would therefore allow the appellant’s appeal and make an order quashing the Secretary of State’s decision.

LJ Tomlinson

[45]I agree[46]I also agree that this appeal should be allowed for the reasons given by Jackson LJ. APPENDIX A

Attributes for Tier 2 (General) Migrants and Tier 2 (Intra-Company Transfer) Migrants

[59]An applicant applying for entry clearance 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:(a) who has, or was last granted, entry clearance or leave to remain as a Tier 2 (General) Migrant or a Tier 2 (Intra-Company Transfer) Migrant, provided that (i) the Sponsor is the same person who sponsored him when he was last granted leave, and (ii) the job that the applicant is being sponsored to do is the same as the one he was sponsored to do when he was last granted leave,(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 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,(c) who has, or was last granted, entry clearance, leave to enter or leave to remain as a Member of the Operational Ground Staff of an Overseas-owned Airline, a Representative of an Overseas Newspaper, News Agency or Broadcasting Organisation, or a Jewish Agency Employee, provided that: (i) the Sponsor is the same person for whom the applicant was working, or intending to work, when he was last granted leave, and (ii) the job that the applicant is being sponsored to do is the same as the one that he was doing, or intending to do, when he was last granted leave, or (d). who is a Senior Care Worker or an Established Entertainer.[62]Notes to accompany Table 10 and Table 11 appear below the respective tables. Table 10 Sponsorship Notes 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 Sportsperson 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 30 points, not 60.[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]The Sponsor must have assigned the Certificate of Sponsorship reference number to the migrant no more than 3 months before the application for entry clearance or leave to remain is made and that Reference Number must not have been cancelled by the Sponsor or by the United Kingdom Border Agency since then.[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.[69]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.[70]In order for the applicant to be awarded points for a job offer in a shortage occupation, the job must, at the time the 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.[71]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.[72]In order for the applicant to be awarded points for being an intra-company transfer, the Certificate of Sponsorship Checking Service entry must confirm that the applicant will be coming to the UK to work for the Sponsor as a Tier 2 (Intra-Company Transfer) Migrant. The applicant must also have been working for the Sponsor outside the UK for a continuous period of at least 6 months immediately prior to the date of the application, and must provide the specified documents to prove this.[73]In order for the applicant to be awarded points under post-study work, the applicant must meet the following requirements: (a). he must be applying for leave to remain, (b) he must have, or have last been granted, entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant, or as a Participant in the International Graduates’ Scheme (or its predecessor, the Science and Engineering Graduates’ Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme, (c) he must have been working for the Sponsor for a continuous period of at least 6 months immediately prior to the date of his application for leave to remain, and must provide the specified documents to prove this, and (d) the job he is being sponsored to do must be the same as the one he is doing at the time of his application.

Qualifications

[74]Specified documents must be provided as evidence of the qualification, unless:(a) the applicant is applying for leave to remain and has, or was last granted, leave as a Highly Skilled Migrant, a Tier 1 (General) Migrant, a Tier 2 (General) Migrant or a Tier 2 (Intra-Company Transfer) Migrant, and(b) the applicant previously scored points for the same qualification in respect of which points are being claimed in this application.[75]An “appropriate sub-degree level qualification” means: (a). 1 or more passes at GCE A level, or (b) a qualification obtained in the UK that is deemed by the appropriate qualifications framework in the part of the UK in which it was obtained (as set out in United Kingdom Border Agency guidance) to be equivalent to, or higher than, (a) but below degree level, or (c) a qualification obtained outside the UK, where the applicant provides the specified evidence to show that it is equivalent to, or higher than, (a) but below degree level.[76]Points will only be awarded for a qualification if:(a) an applicant’s qualification is deemed by UK NARIC, or the United Kingdom Border Agency (in published guidance), to meet or exceed the recognised standard of a Bachelor’s or Master’s degree, or a PhD, in the UK, or(b) the qualification is below the recognised standard of a Bachelor’s or Master’s degree, or a PhD, in the UK, but the applicant submits the specified evidence to prove that it is an appropriate sub-degree level qualification (see paragraph 75).[77]Points will be awarded for a vocational or professional qualification if:(a) the qualification is deemed by UK NARIC to be equivalent to a PhD, Bachelor’s or Master’s degree in the UK, or(b) the qualification is below the recognised standard of a Bachelor’s or Master’s degree, or a PhD, in the UK, but the applicant submits the specified evidence to prove it is an appropriate sub-degree level qualification (see paragraph 75).[78]Points can only be scored for one qualification. For example, if an applicant has both a Bachelors and a PhD, that will score 15 points and not 25.

Prospective Earnings

[79]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.[80]Where the applicant is paid hourly, points will only be awarded for earnings up to a maximum of 48 hours a week, even if the applicant works for longer than this. For example, an applicant who works 60 hours a week for £8 per hour will be awarded points for prospective earnings of £19968 (8x48x52), which equates to 5 points, and not £25960 (8x60x52) which would equate to 20 points. 72. Table 11 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 Applicant was awarded points when last granted leave because the job was in a shortage occupation. 30 Appropriate sub-degree level qualification 5 £17000-19999.99 5 30 Batchelors or Masters 10 £20000-21999.99 10 Other cases in which applicant has a Certificate of Sponsorship 30 PhD 15 £22000-23999.99 15 £24000+ 20 Notes Sponsorship

Notes

[81]Paragraphs 63 to 68 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, or (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 last been granted, entry clearance, leave to enter or leave to remain as: (i) a Qualifying Work Permit Holder, (ii) a Representative of an Overseas Newspaper, News Agency or Broadcasting Organisation, (iii) a Member of the Operational Ground Staff of an Overseas-owned Airline, (iv) a Jewish Agency Employee, or (v) a Tier 2 (General) Migrant or a Tier 2 (Intra-Company Transfer) Migrant, but only if, when he received his last grant of leave, he was awarded points under these provisions (i.e. the transitional arrangements),(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 of 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 an Established Entertainer, the job that the Certificate of Sponsorship Checking Service entry records the applicant as having been engaged to do must be the same job: (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 Work Permit Holder, (ii) that the applicant was doing, or intended to do, when he received his last grant of leave, in the case of an applicant whose last grant of leave was as a Representative of an Overseas Newspaper, News Agency or Broadcasting Organisation, a Member of the Operational Ground Staff of an Overseas-owned Airline, or a Jewish Agency Employee, or (iii) in respect of which the Certificate of Sponsorship that led to the previous grant was issued, in the case of an applicant whose last grant of leave was as a Tier 2 (General) Migrant or a Tier 2 (Intra- Company Transfer) Migrant, and(d) the applicant’s last grant of entry clearance in any of the categories listed in paragraph (a)(i) to (v) above must have been less than 5 years prior to the date of the current application.

Qualifications and Prospective Earnings

[84]Paragraphs 73 to 80 above apply.

Attributes for Tier 2 (Ministers of Religion) Migrants

[85]An applicant applying for entry clearance or leave to remain as a Tier 2 (Minister of Religion) Migrant must score 50 points for attributes.[86]Available points are shown in Table 12 below.[87]Notes to accompany Table 12 appear below that table. 80. Table 12 Criterion Points Certificate of Sponsorship 50

Notes

[88]In order to obtain points for sponsorship, the applicant will need to provide a valid Certificate of Sponsorship reference number for sponsorship in this category.[89]A Certificate of Sponsorship reference number will only be considered to be valid for the purposes of this sub-category if the number supplied links to a Certificate of Sponsorship Checking Service entry that records the applicant as the migrant and confirms that the Sponsor is sponsoring him as a Tier 2 (Minister of Religion) Migrant.[90]The Sponsor must have assigned the Certificate of Sponsorship reference number to the migrant no more than 3 months before the application is made and the reference number must not have been cancelled by the Sponsor or by the United Kingdom Border Agency since then.[91]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.[92]In addition, the Certificate of Sponsorship Checking Service entry must confirm that: (a) the resident labour market test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job, has been complied with, unless the applicant has, or was last granted, entry clearance, leave to enter or leave to remain as a Tier 1 (Minister of Religion) Migrant or a Minister of Religion and the Sponsor is the same person as he was working for, or intending to work for, when last granted leave, (b). the migrant: (i) is qualified to do the job in respect of which he is seeking leave as a Tier 2 (Minister of Religion) Migrant, (ii) intends to base himself in the UK, and (iii) will comply with the conditions of his leave, if his application is successful, and (c). the Sponsor will maintain or accommodate the migrant.

Attributes for Tier 2 (Sportsperson) Migrants

[93]An applicant applying for entry clearance or leave to remain as a Tier 2 (Sportsperson) Migrant must score 50 points for attributes.[94]Available points are shown in Table 13 below.[95]Notes to accompany Table 13 appear below that table.

Cited in 7 later judgments