The latest Country Guidance case on Zimbabwe finds, in essence, that despite vociferous and violent pronouncements about homosexuality at the highest level in that country, Zimbabwe is a safe haven for lesbians and gays. The case is LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) and it was reported on 26 January 2012.

In some ways the case appears at first blush to represent simple common sense: each case must be argued on its own facts. However, the effect of a Country Guidance case is more pernicious than may first appear. It introduces a starting presumption as to the outcome of the case which must be rebutted by the party whose case is negatively affected by the case in question. Practice Direction 12 for the tribunal states that Country Guidance cases are authoritative and that it will likely be an error of law not to follow a Country Guidance case.

The case highlights long held concerns about the entire principle of having Country Guidance cases. Compare the following two sentences from paragraphs 17 and 24:

“Before us, the appellant did not rely only on general risk to homosexuals, or to female homosexuals.”

and

“[The appellant's lawyer] invited us to allow the appeal primarily because all homosexuals, male and female, are at risk of persecution throughout Zimbabwe.”

The Appellant’s primary case was said to be about the individualised risk to her alone, based on the unique facts of her own case. That might be described as the traditional approach to arguing a legal case – many might be surprised to learn there is any other approach, in fact. However, the appellant’s representative argued and presented considerable evidence that an entire class of persons, lesbians and gays in Zimbabwe, were refugees. Only one of that class of persons was represented before the tribunal but the lawyer took it on himself to argue the case for everyone, no doubt encouraged by directions from the tribunal to do so.

I can myself fairly easily think of arguments concerning the evidence put forward by the Home Office in this case but I have no idea if these arguments were put to the tribunal. Why was the evidence of Women of Zimbabwe Arise (WOZA) considered to be relevant and given any weight, for example? In what way were they qualified to give evidence about the treatment of lesbians or others and why would they not suffer from the same deep rooted homophobia as the rest of Zimbabwean society?

The determination is open to legal criticism (where is the evidence to support the findings, apart from anything else?) and an appeal might normally be expected. But here too arises another problem with Country Guidance cases: the particular appellant actually succeeded and will be recognised as a refugee. She therefore cannot appeal, and the negative generalised conclusions that had nothing to do with her case will now stand for several years creating a presumption in other cases.

This type of Country Guidance case is anathema to the common law system of precedent and offends against the general prohibition on judgments in rem. The tribunal should not be reporting such cases.

It is unfair to be excessively critical of the lawyer or lawyers in this case because plenty of others do the same. Being involved in a Country Guidance case raises one’s profile and it is exciting, opening up all sorts of legal interest and enabling generous Legal Services Commission funding for expert evidence and other preparatory work. However, these Country Guidance cases where the arguments and evidence is extraneous to the clients best case are very different to traditional  test cases where one is forced to argue a novel point of law because the client’s case depends on it or with the limited number of Country Guidance cases where, like those on Somalia, the client’s best case is actually the generalised risk.

I was once memorably (to me!) and I thought rather unfairly described as ‘wholly disingenuous’ in a reported determination when I resisted the tribunal’s attempts to force me to make generalised arguments beyond the scope of the particular facts of my client’s case. It continues to surprise and depress me that others don’t do the same.

As peers prepare for the key debate on the household benefit cap the policy is still begging as many questions as answers.

Ministers appear to have won the battle for public opinion over the principle of having a cap with 76 per cent of voters backing the idea in an opinion poll over the weekend.

However, the battle will be over the details. Labour has said it will not vote against the cap itself but will try to amend the Bill so that extra costs do not fall on council tax payers. Several Lib Dem peers including former party leader Lord Ashdown have said they cannot support the cap as proposed. And Lord Best will be prominent among crossbenchers pressing for changes.

Extra fuel for the fire came in a revised impact assessment published by the Department for Work and Pensions (DWP) this morning. This admitted that 75,000 families will be affected – 25,000 more than in the first version published last year. They will lose an average of £83 a week each – £10 less than before. And the government will save more than previously estimated (£330m in 2014/15 rather than £275m).

Read more

Source: Inside Housing

Rules…

The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.

The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.

Paragraph 395C at the moment reads as follows:

It is imperative that the Christians unite in prayer and action to ensure that the long suffering people of Zimbabwe are freed from tyranny which has oppressed and afflicted them for the past 31 years under Robert Mugabe and ZANU PF political party.

There is need now more than ever to mobilise our congregations and denominations to earnestly intercede for Christians who are suffering in Zimbabwe.  Some church buildings have been demolished and others illegally occupied. Gatherings have been violently dispersed by Riot Police. The Anglican cathedral has been desecrated by Mugabe’s renegade priest Bishop Nobert Kunonga and his followers. A group of nearly 80 clergymen from the Church Province of Central Africa (CPCA) were evicted from Peterhouse High School in Marondera on Tuesday 3 January 2012, by police who insisted they did not seek permission to gather for their annual prayer retreat .Pastors praying for peace in Zimbabwe have been arrested for ‘subversive prayers’. Civilians and human rights activists continue to be beaten indiscriminately in the streets. Lawyers and advocates continue to be arrested and dragged out of their chambers. The sick are systematically denied medical help. The children are denied a decent education by the lawless regime of Robert Mugabe who willy-nilly disrupts lessons for political expedience. Prisoners die of hunger awaiting trial. Enough is enough!  Mugabe and his ZANU PF mafia should relinquish office and be replaced by a democratically elected government by the people and for the people.

We need to pray and act now to ensure that Zimbabweans attain the freedom that they have been praying and working for these many years. Mugabe’s Marxist regime destroyed the rule of law and devastated the economy with record inflation outside a war zone. In our prayers we should prioritise praying for the restoration of respect for the sanctity of life, property rights and for the rule of law.

We should pray that the new government should be democratically elected in a free and fair election. We should pray for the right to hold dual citizenship, e-balloting and postal balloting this coming election for every Zimbabwean dotted around the globe. We as Christians should impress upon the new political set up to implement Biblical principles of restorative justice, restitution to those defrauded and looted by ZANU PF, restoration of property to those who were unjustly deprived of their homes and properties through operation Murambatsvina and its phase 2 currently ongoing as well as the continued chaotic land theft disguised as reform. The-would -be government should promote free enterprise and honest money. National resources should not be channelled towards individual enrichment like what ZANU PF is doing with the proceeds of Marange Diamond mines. “Thou shall not steal” (Exodus 20:15). The principle of private ownership of property should be established. Institutional envy and theft by conversion practice of ZANU PF should be made criminal and punishable by law. “Thou shall not covet thy neighbour goods” (Exodus 20:17)

ZANU PF Indigenisation of companies Act and free-for-all attitude is legalised theft of wealth created by hard work, business acumen and ingenuity of others. As Christians, we should pray that this never see the light of day rather we should pray for free enterprise, diligent hard work, honesty, thrift, honest money and Christian ethic in fiscal behaviour. “Diligent hands will rule, but laziness ends up in slave labour” (Proverbs 12:24)

Together yes we can!! Let us all pray and hope for an imminent departure of Mugabe, his cronies and ZANU PF party from the epicentre of political, social and economic power in Zimbabwe. Zimbabwe is crying for urgent help and change. She needs to heal her wounds, feed and nurture her hungry children. Time for real and meaningful changes is here and now.

Today’s report by the Children’s Commissioner, Landing in Dover, exposes gross double standards by UK Border Agency officials. The report reveals the existence of a so called ‘gentleman’s agreement’ operating at the south coast ports whereby an unaccompanied child who did not make an immediate asylum claim would be returned to France within 24 hours of arrival in the UK with no welfare or other assessment and no referral to social services.

The agreement was in place from at least 1995 through to November 2011, when the Children’s Commissioner discovered the existence of the agreement. At this point the practice was halted immediately by the new Chief Executive of UKBA, the inappropriately named Rob Whiteman.

The practice of returning unaccompanied children with no welfare assessment is so obviously in breach of the duty to safeguard and promote the welfare of children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 that it beggars belief that UKBA officials continued with the practice. The practice was also obviously in breach of all the UKBA guidance to its staff about trafficking, which encourages staff to be proactive and alert in seeking to identify potential victims of trafficking.

Not only that, but the investigation found that the UK Border Agency is still detaining children despite Government commitments to the contrary:

The report finds that children are in fact not currently being held for the ‘shortest appropriate period of time’. Rather they are detained whilst significant interviews that will inevitably bear on their prospects of being granted permission to stay in the UK are conducted. From the cases we have considered in preparation of this report, we find that the local authority is only informed of the child’s arrival several hours after initial detention and well into the interviewing process. The report concludes that interviewing children in depth immediately on arrival is unnecessary and not in their best interests and should be reconsidered.

Even where children said that they were tired or ill UKBA staff would apparently carry on regardless and press on with further interviews without referring the child to social services. The report identifies the following failings:

• Children are generally not fit for interview due to illness, hunger, tiredness, fear or a combination of these factors.
• The length of time between being placed into detention and release into care is too long. This is due to both the numbers of interviews routinely undertaken and the waiting times between the interviews.
• Telephone interpreting is generally used at the interviews and is not, in our view, ‘fit for purpose’.
• Children are in practice unable to instruct a legal representative or in most cases have an independent Responsible Adult present during interviews and yet the interviews can be relied upon by UKBA in the asylum decision.
• Even in the absence of a legal representative or independent adult, children are required to sign the screening interview record, confirm its contents are correct and confirm that they have understood legal warnings and instructions from the immigration officer.

This is all pretty horrifying, and it should inform judges and lawyers when they consider whether weight should be attached to information from screening interviews of unaccompanied children.

The good intentions of Ministers, senior managers and the people who write the UKBA policy documents are all very well, but what matters is what happens on the ground. Culture change is always hard but the UK Border Agency has a long, long way go before it can realistically assert that its staff take children’s welfare seriously.

In the case of NS v UK (C-411/10) (see here for FM’s earlier alerter post), the Court of Justice of the European Union (CJEU) held that the transfer of an asylum-seeker from one EU Member State to another under the Dublin II regulation is not permitted where a failing asylum system in the receiving State creates a risk of inhuman or degrading treatment. The case is one of a series of cases brought in relation to the difficulties faced by asylum-seekers in the EU.

The applicant was an Afghan asylum-seeker residing in Britain who first entered the EU through Greece.  He resisted his transfer to Greece under the Dublin II regulation on the basis that the asylum situation there (described by UNHCR as a ‘humanitarian crisis’) would lead to a breach of his fundamental rights.  The Dublin II regulation determines the Member State responsible for examining an asylum claim within the EU.  It provides that, under normal circumstances, an asylum-seeker’s application should be determined by the first Member State in which they arrive and includes a mechanism for removal to that country. The Dublin system is based upon ‘mutual trust’, an assumption that all Member States respect and implement EU law, including the protection of fundamental rights.

The CJEU’s judgment emphasises that mutual trust is essential to the Common European Asylum System but recognises that mutual trust cannot be blind trust where breaches of fundamental rights are concerned. The Court therefore held that a Member State is prohibited from transferring an asylum-seeker to another Member State under the Dublin II regulation:

where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. [para.94]

In practice, this means that removal will be unlawful in very limited circumstances. Only a real risk of a breach of Article 4 of the Charter will be sufficient to meet the test.  It is clear that even serious breaches of EU Directives which lay down minimum standards for the reception and treatment of asylum-seekers will not amount to grounds for resisting transfer under Dublin II unless they also constitute a breach of Article 4.

The CJEU ruled out the use of a conclusive presumption that an asylum seeker’s fundamental rights will be respected upon return to another Member State.  However, Member States are not prevented from operating a rebuttable presumption.  It appears that the burden of rebutting the presumption lies on the asylum-seeker.  It is less clear just what evidence the asylum-seeker must present in order successfully to rebut it.

The applicant in this case was assisted by the judgment of the European Court of Human Rights (ECtHR) in MSS v Belgium and Greece which held: (1) that the failing asylum system in Greece posed a real risk of refoulement, (2) that living and detention conditions for asylum-seekers in Greece amounted to inhuman and degrading treatment and (3) that because the Belgian authorities knew or ought to have known these facts, they breached Article 3 of the European Convention on Human Rights (equivalent to Article 4 of the Charter) by returning the applicant to Greece.

The CJEU points out the sources of evidence considered by the ECtHR in MSS v Belgium and Greece enable Member States to assess compliance with fundamental rights.  The CJEU specifically refers to Commission reports evaluating the Dublin system that are indirectly addressed to Member States through their participation in the Council of the European Union.  It also refers to correspondence between UNHCR and the responsible Belgian minister.  The sources referred to by the CJEU serve to hilight the disparity in information and resources available to asylum-seekers by comparison with Member States.  This is the problem posed by a rebuttable presumption of compliance with fundamental rights, where the burden of rebutting that presumption is placed on the asylum-seeker.

The decision in NS v UK tightly limits the circumstances in which transfer under the Dublin II regulation can be resisted.  Nonetheless, the impact of this decision will be considerable given the large numbers of asylum-seekers that enter the EU through Greece.  There is also evidence to suggest that the strict test laid down by the court may also be met by the asylum stuation in other EU border countries such as Italy and Cyprus, almost certainly reopening the litigation over removals to those countries.

The court is clear-eyed about the difficulty of establishing harmonised standards for asylum across the EU.  This may be one reason why the bar for challenging removals is set so high, despite the potentially serious impact on asylum-seekers when harmonising measures relating to their reception and treatment are breached.  Ultimately, the credibility of the Dublin system and of the Common European Asylum System itself is contingent upon harmonised substantive and procedural standards for asylum.  In reality, that this is far from being achieved is a significant cause behind the secondary movement of asylum-seekers within the EU; precisely the issue the Dublin II regulation seeks to address.

The Court of Appeal last week handed down a very interesting judgment on the need for ‘proper argument’ in Country Guidance cases, the obligation on the tribunal itself to seek to secure that proper argument and how far the tribunal determination process can morph from an adversarial to an inquisitorial one. The case is HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536 and Richards LJ gives the leading judgment.

This was the case where the tribunal decided to plough ahead with a CG case on Iraq despite the appellants being unrepresented, in controversial circumstances, at the hearing. See previous blog coverage here and here.

On the need for proper argument, Richards LJ said as follows:

39. Whether or not country guidance determinations can properly be described as “declaratory” in nature, they have a status and significance comparable to that which declarations can have in public law cases, and it is just as important that there should be proper argument in them. “Proper argument” in this context encompasses not just argument on the law but also the drawing of relevant materials to the attention of the tribunal and the making of submissions as to the effect of those materials, so that the determination is based on as full and informed an analysis as possible. In the ordinary course that is achieved through both sides being legally represented. Indeed, on the analysis provided to us by Mr Fordham, there has been such representation for every country guidance determination save the one now before us.

…

42. The tribunal did what it could to try to secure legal representation for the appellants. It sought to have the question of public funding reconsidered and it asked the appellants’ former representatives whether they would act pro bono in the absence of public funding, but in each case it was met with a negative response. The tribunal might have approached the LSC directly, but there is nothing to suggest that it would have been any more successful than the appellants’ former representatives had been. The features of the legal aid system which precluded the continuation of public funding before the tribunal are deeply regrettable, all the more so when it is borne in mind that public funding was granted for the appeal to this court and that the overall cost to public funds will have been far greater than if funding had been continued at the time for the proceedings before the tribunal. Unsatisfactory as it was, however, the tribunal was faced with a position where none of the appellants was represented. It was also clear that none of the appellants would be in a position to make any material contribution of their own to the proceedings.

However, this wasn’t enough, apparently. Richards LJ goes on to suggest two further possibilities. The first was to ask UNHCR to make submissions, something UNHCR themselves said they would not normally do but had not technically ruled out. Anyone familiar with UNHCR London might think this was a somewhat unlikely possibility. More interestingly and potentially usefully Richards LJ then goes on:

45. The second possibility was to request the Attorney General to consider appointing an amicus curiae (advocate to the court). Those appearing before us were not aware of any instance in which an amicus has been appointed for the purpose of proceedings in the tribunal. I see no reason in principle, however, why such an appointment should not be made in an appropriate case. A memorandum from the Lord Chief Justice and the Attorney General on requests for the appointment of an advocate to the court is set out in Civil Procedure, vol.1, at pages 1144-1145. Even though it does not apply in terms to tribunal proceedings, its contents can readily be transposed to such proceedings. It states:

“3. A court may properly seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney General may decide to appoint an Advocate to the Court.

4. It is important to bear in mind that an Advocate to the Court represents no-one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An Advocate to the Court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts ….”

46. The situation before the tribunal in this case would in my view have been a suitable one for the appointment of an advocate to the court, though the decision would have lain with the Attorney General. The application of Article 15(c) to conditions in Iraq involved consideration of important issues of law and fact on which such an advocate could make a helpful contribution, in particular by testing the position taken by the Secretary of State on the law and its application to the materials before the tribunal. In addition, whilst an advocate to the court would not normally lead evidence, I take the view that he could properly have drawn the tribunal’s attention to, and made submissions on, relevant background material not otherwise before it.

This is certainly an interesting possibility. Back in 2005 I and others argued in an IAS pamphlet that a specially appointed court advocate would be useful in Country Guideline cases, for example to address evidence and issues not arising on the facts of the particular cases under consideration. However, Richards LJ is proposing such an advocate only where there is no advocate at all for the appellants.

The court’s conclusion is in fact not that ‘proper argument’ is a prerequisite in a country guidance case but that the tribunal erred in failing to do more to secure proper argument. It would appear that had UNHCR and the Attorney General both declined to provide some sort of submissions, the tribunal would have been entitled to do as it did.

The judgment ends by leaving the question open whether the tribunal might properly adopt an inquisitorial role and by quashing the CG case.

As the Court of Appeal once said in a previous case, all that time and learning was ‘desert air’.

What is the psychological effect upon employers of the increasing stringency of their obligations under the Points Based System?

The civil penalties under section 15 of the Immigration and Nationality Act 2006, which, in February of 2008, created the possibility of a £10,000 penalty to be paid by an employer for each person he or she is found to employ who does not have permission to be in the UK, or whose permission does not entitle them to work. Employers are liable for this penalty whether or not they knew that their employee didn’t have the necessary leave to enter or remain in the UK or permission to work.

If they did have such knowledge employers may be prosecuted under section 21 of the same Act – and could be sent to prison for up to 6 months.

But the dangers facing employers don’t end there. Unless they keep up with their reporting obligations with regard to employees from outside the European Economic Area (the “EEA”) as Tier 2 Sponsors – the UKBA could remove their Tier 2 Sponsor licence – which could be nothing short of catastrophic for those employers dependent upon skilled labour from outside the EEA.

So it is not mere hyperbole to say that the joint effect of the regimes imposed on sponsors is a kind of enhanced vigilance bordering on paranoia.

The recent Employment Appeal Tribunal judgment in H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA demonstrates how employers’ concerns as to the lawfulness of a person’s employment can lead to injustice.

The Claimant, a Nigerian national with a Spanish husband, was working for the Respondent at an ASDA store when, on 8 July 2010, the Respondent suspended her without pay and demanded evidence of her permission to work in the UK. The Respondent did this because the Claimant’s passport had a UKBA endorsement indicating that she had been “given” the right to reside in the UK as the spouse of an EEA national exercising Treaty rights in the UK until 8 July 2010. The Claimant told the Respondent that she’d applied to the UKBA for renewal of her endorsement. The Respondent then contacted the UKBA themselves.

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

The Respondent sacked the Claimant accordingly. Not long after the UKBA wrote to the Respondent, it provided a further letter to the Claimant, in which it said that until her application had been decided she would:

“be treated for immigration purposes as a family member of a legally resident EEA national and, as such, [she was] free to live and work in the UK”.

The Respondent therefore reinstated her to her job.

The Claimant’s case in the Employment Tribunal, and on which she succeeded after her first instance appeal was dismissed, was that she had been wrongly suspended without pay and that she had always been entitled to work in the UK as the family member of a EEA national. It did not matter, as His Honour Judge McMullen QC accepted, that she did not have the necessary residence documents. Those documents did not give her the right to work – they were simply evidence of the existence of that right, which came into being because the Claimant was married to an EEA national. This was clear from Article 25 of the Citizens’ Directive:

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

The Claimant was accordingly awarded her pay for the period in which her employment had been suspended.

At first instance the judge had found that the Respondent had been entitled to act as it had done because of its concerns about being penalised under section 15 of the Immigration and Nationality Act 2006. That judgment was however overturned because it was clear that that section of that Act had no application to the Claimant.

What is interesting about all this is the role of the employer as the delegated enforcer of immigration control. A sense of paranoia will inevitably lead people entrusted with such a role into a trigger happy response to a concern about their employees’ entitlement to work. This is a happy example of someone who was able to obtain redress against the effect of such a disposition on her.

Heaven knows how many examples there are to the contrary, but perhaps it is naive to imagine that they are anything other than what was and is intended.

Kathryn Bradbury

Gherson Immigration Lawyers

www.gherson.com

In a substantial judgment running to 149 paragraphs Mr Justice Beatson sitting in the High Court has rejected a challenge to the rule requiring spouses to attain a certain level of English before entry. The case is R (Chapti and Others) v Secretary of State for the Home Department [2011] EWHC 3370 (Admin).

I’ll try and come back to this later and revise the post, but am short on time right now. The challenge seems to have been framed very much as a challenge to the Immigration Rules themselves rather than to the effect in the particular cases. The summary of conclusions at paragraph 148 of the judgment is as follows:

(a) The new rule does not interfere with the Article 12 rights of the claimants: see [65];

(b) Article 8 is engaged in this case: the new rule impacted on the Article 8 rights of the claimants: see [71];

(c) The aims of the new rule, to promote integration and to protect public services, are legitimate aims within Article 8(2): see [84] – [85];

(d) Taking into account all the material before the court, in particular the exceptions to it, the new rule is not a disproportionate interference with family life and is justified: see [87] – [115]. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights, does not render the rule itself disproportionate;

(e) As to discrimination contrary to Article 14 when read with Article 8, the exemptions based on nationality are not direct discrimination based on nationality. This is because the “bright line” drawn between countries considered to be “English-speaking countries” and those which are not is (see [132]- [133]) a rational one, and accordingly those who are exempt are not in a relevantly similar situation to those who are not exempt: see [138];

(f) The new rule does not indirectly discriminate on the ground of nationality, ethnic origins or disability: see [141] – [143]. For the reasons given at [140], in the case of the allegation of indirect gender discrimination, I have made no determination.

The door is still open to succeeding in individual cases where it can be shown the interference is disproportionate. For example, I recently acted for someone who had entered the UK long before the new rule was introduced. She was illiterate in her own original language and although she could speak English quite well she could not read well enough to take the speaking and listening tests – which are conducted in writing! Her appeal succeeded.

In any event, an appeal in the Chapti case is inevitable. Remember, Quila failed at first instance.

Back on 6 April 2011 the UK Border Agency made a change to the settlement rules for work permit holders who had entered the UK before the Points Based System was introduced. The change required a work permit holder to be paid a certain salary in order to qualify for settlement, or Indefinite Leave to Remain. The salary required is that specified in the myriad Codes of Practice for Tier 2 of the Points Based System.

The problem since faced by many work permit holder seeking settlement after five years of living and working in the UK is that their work permit was approved for one salary, which is what they have as a consequence been paid by their employer, but suddenly, with no individual warning, that salary level is no longer sufficient and the work permit holder neither qualifies for settlement nor for an extension under Tier 2.

An announcement recently went up on the UK Border Agency website that as of 31 October 2011, work permit holders will not only need to be paid the Code of Practice salary but will need to submit certain specified documents in order to demonstrate this. Previously certification by the employer was sufficient, but no longer.

The 6 April change was clearly an unfair one in the moral sense – the rules of the game were changed without notification. Foreign workers have a potentially difficult relationship with their employer in any event, and negotiating a rise in salary might well have been difficult even had they known one was needed. However, in immigration law it is very difficult to succeed on the basis of a legitimate expectation or a fairness argument. The courts have repeatedly held that there is no legitimate expectation that the Immigration Rules will remain the same (see Odelola for example). Cases that have succeeded, like the HSMP and BAPIO challenges, were based on specific assurances that the rules would remain the same, assurances that are not normally given. I have myself struggled to come up with a robust legal solution for those facing this problem. Article 8 ECHR is the best I can offer, but I would be interested to hear if anyone has done better.

Those work permit holders coming to the end of their five years and considering applying for settlement would be well advised to make sure they have checked they are paid in accordance with the relevant Code of Practice.