Thousands of UK work permit holders who think they are eligible to apply for Indefinite Leave to Remain (ILR), or permanent residency, could be refused on a technicality by the UK Border Agency (UKBA) through no fault of their own.
During the next few years a huge number of migrant workers will reach the magic ‘5 years continuous work’ on a work permit. They will be sending off a ‘SET’ form to the UK Border Agency in order to apply for indefinite leave to stay in the UK permanently. Their future, and that of any partner or children, hangs on the success or failure of this application. Unfortunately for many, the dream of permanent residency in the UK will turn into a refusal nightmare.
Under old pre-points based Immigration Rules employers could apply for a work permit for ‘NVQ level 3’ job vacancies for the likes of Senior Care Workers, Nurses and Chefs, jobs which no longer qualify for a working visa. In last period of the boom years leading up to 2008, hundreds of thousands of work permits were issued to Indian, Pakistani, Bangladeshi and Filipino migrant workers for positions in care home and restaurants all over the country.
Prior to Tier 2 of the points based system, employers did not have to register as a sponsor in order to obtain a work permit for a non-EU worker. Each permit was applied for individually along with a full set of documents for every case. Work permit, or WP1, applications were carefully scrutinised by Home Office staff in Sheffield.
It was actually more difficult to be granted a single work permit than it was to register as a Tier 2 Sponsor and be given permission to issue dozens of Certificates of Employment (a work permit) under the new Tier 2 system. One of the main differences between the two systems was that, unlike Tier 2, under the old system once rigorous upfront checks had been carried out before issuing the permit, very few permits were checked after issue.
The Home Office laid down strict guidelines on pay rates for work permits, which were set at the ‘appropriate level’ for the job. For instance, a senior care worker at supervisory level should, according to the Home Office, have been paid a minimum of £7.02 per hour. Care industry employers did not always agree and argued that this rate was above the ‘going rate’ for UK resident workers. They also argued that no allowance was made for regional variations.
The Home Office were not interested in these arguments and employers had to agree to the appropriate pay scale by stating the salary on the WP1 or work permit applications were automatically refused.
The problem for some workers is that once the permit arrived, employers did not always stick to the salary as stated on the work permit and instead underpaid foreign staff for the duration of their visa.
Now fast forward 5 years, as the excited worker applies for ILR, sending their payslips, P60’s and bank statements to the UKBA. Under the Rules the worker must prove that the appropriate salary has been paid by the employer.
If the employer has paid the worker a lower salary figure, or employed you under different terms to the work permit – for instance you were employed at a different work place or doing another job than the one stated on the permit – you will almost certainly be refused.
Even if your employer is law abiding and has paid the salary defined on the original work permit, you could still find that the salary is no longer sufficient and does qualify for UK settlement or an extension under Tier 2.
On 6 April 2011 the Government made an important change to the settlement rules for work permit holders who came in prior to the points based system. You are now required to be paid a certain salary in order to qualify for Indefinite Leave to Remain. The salary is specified in UKBA’s Tier 2 Codes of Practice, obviously introduced after tens of thousands of old style work permits were issued.
Last year an announcement quietly went up on the UK Border Agency website stating that: from 31 October 2011, work permit holders must be paid the Codes of Practice salary and submit specified documents to demonstrate this. Before this certification by the employer was sufficient proof.
There have already been a number of refusals and subsequent appeals.
Cynthia Barker of immigration advisers Bison Management UK has arranged thousands of work permits since 1999. Cynthia says that once a work permit is in place little or no checks are made on the employer and the worker is in a vulnerable position, especially when willing sponsors are hard to come by.
“The work permit holder is in a difficult position as they are afraid of losing their job if they make a fuss or complain, even if their future is at stake.
“Unscrupulous bosses have been known to cancel work permits or use their power as a constant threat.
“But if you are in this situation and you do nothing about it, you will suffer, not the employer, so take advice on this before you apply.”
Lastly, she advises to migrants watch out for things like “illegal benefit claims, minor offences and county court judgments (CCJ’s) which if not declared will lead to a refusal”.
If you are refused you should consult a qualified adviser to look at all your options. You may have no alternative but to appeal against the refusal and even use human rights grounds, since a reapplication will contain the same information.
Bison Management’s appeal specialist was successful in overturning a recent refusal based on salary payments at the First Tier Tribunal. There have also been cases heard on human rights grounds at the Upper Tribunal.
There is further good news for work permit holders. In a recent Upper Tribunal appeal case – Philipson (ILR – not PBS: evidence) India  UKUT 00039 (IAC) – involving Indian care workers, Mr Justice Blake and Upper Tribunal Judge Pitt Judge Blake allowed an appeal against a refusal and gave directions to the UKBA to grant Indefinite Leave to Remain.
Their appeal had earlier been dismissed in the First Tier Tribunal, a decision which the Senior Judges remarked was a “material error of law”, or wrong to you and me.
In conclusion the Upper Tribunal Judge said:
“For the reasons given above we are satisfied that the judge (at the First Tier Tribunal) made a material error of law in considering this appeal both under the Immigration Rules and under Article 8. We set aside the decision.
“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.”
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