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Supreme Court overrules UKBA on Tier 2 working visa refusal | Immigration Matters

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The UK immigration system was in chaos last night after senior judges said Home Office rules to curb the number of migrants were unlawful and not based on the Immigration Rules, the Telegraph reports.

The Supreme Court said ministers were wrong to refuse foreign workers, students and other migrants from the UK under criteria or guidance that had not been laid before Parliament or had not become law.

The case centred on a Pakistani man who was refused an extension to stay because he did not meet a new job qualification and salary criteria under the points-based system.

However, those requirements were detailed in a code of practice and were not included in official Immigration Rules that are presented to parliament.

His subsequent appeal against the refusal eventually worked its way up to the highest court in the land where the most senior judges considered the decisions based on the Immigration Rules, not the guidance or internal criteria.

The Home Secretary is bound by law to put any immigration “rule” changes to MPs and was therefore wrong to refuse Hussain Zulfiquar Alvi his extension, the Supreme Court concluded.

The Home Office will now introduce urgent Statement of Changes in the Immigration Rules into Parliament to address the error in Law and meet the court requirements.

But legal experts last night warned the ruling could still have far reaching consequences and lead to a flood of legal challenges by those refused visas or work permits.

Shahram Taghavi, deputy head of immigration at solicitors Lewis Silkin and who was involved in the Supreme Court case, said: “Today’s ruling will have a profound impact upon the current corporate immigration system, and effectively represents a wholesale collapse of the legal framework for immigration policy in the UK.

“This decision will no doubt reverberate loudly and widely, given the sheer number of cases on related matters winding their way through the Courts at present.”

Mr Alvi, 34, came to the UK in 2005 on a student visa and was granted leave to remain to work as a physiotherapy assistant in 2005.

The implementation of the new immigration points-based system in 2008 introduced new criteria for migrant workers.

Mr Alvi no longer met those requirements because his job was not of a sufficient qualification and did not meet a minimum salary requirement and he was refused an extension to stay in 2009.

But Mr Alvi said the decision was unlawful because Parliament had not actually scrutinised the specific Home Office-set rules relating to his occupation, a view upheld by the Supreme Court yesterday.

Lord Hope, the lead justice in the case, said he recognised the judgment could create a huge workload for Parliamentarians.

In an urgent written ministerial statement yesterday, Lord Henley, the Home Office minister, said: “The Supreme Court has drawn the line in a way which provides a clear and workable framework for the future but some requirements in the current Immigration Rules are not consistent with this judgment.

“In particular, the Visitor, Points Based System and Family rules impose some requirements on applicants by way of guidance which fall foul of the Supreme Court’s judgment.

“The Government will therefore lay a Statement of Changes on 19 July coming into force on 20 July in order to safeguard their lawful operation.”

A Home Office spokeswoman added: “Today’s judgment supports our ongoing work to simplify the immigration system and minimise legal challenge in future.”

But the Migration Observatory think-tank at Oxford University said it was a “potentially very significant development” that could call into question the validity of immigration rules as a whole.

“This could open the government up to an enormous number of legal challenges, not only from labour migrants, but also from family migrants and others,” a spokesman said.

Leading Immigration Barrister Colin Yeo of Renaissance Chambers said the judgments (Munir [2012] UKSC 32 and Alvi [2012] UKSC 33) are ‘perhaps the most important in immigration law since the Immigration Act 1971 was passed’ and ‘drives a coach and horses through the thousands of meticulously detailed pages of the PBS (Points Based System)’.

Cynthia Barker of Immigration Advisers Bison Management said she had seen a number of students and workers refused extensions because of changes in guidance and urges ‘victims of unlawful refusals to come forward’.

This week Immigration Matters reported on the hundreds of overseas students trapped in a legal limbo by UK visa delays which mean they do not have the right either to stay or go back home. Thousands of Tier 4 students have been left stranded after their colleges were closed by the UK Border Agency. They were unable to obtain a new visa (usually because they no longer had the required funds to qualify) in order to change provider.

Until recently overseas students were allowed to change college or university by simply informing the UK Border Agency.

But under new rules, students moving provider, for instance because the college had lost its Tier 4 licence or had closed, students were forced to obtain a new visa and qualify all over again.

In some cases they were given just 60 days in which to find a new college and CAS, gather the documents, show the required funds for the required time and apply for a visa extension.

Most had lost all the money paid to their former college and could no longer meet the ‘funds requirements’ or show ‘established presence’ in the UK because the institution was no longer there.

The UK Border Agency has today published a written ministerial statement which has been laid in Parliament outlining a number of changes to the Immigration Rules. The announcement continues:

‘These will come into effect tomorrow (20 July 2012) and have been made following the Supreme Court’s judgment in the cases of Alvi, Munir and Rahman.

‘The changes will not affect the way we consider applications. They support our ongoing work to simplify the immigration system and ensure that existing policy and guidance is transferred into the Immigration Rules where necessary.’

For full details, please see the Statement of Changes to the Immigration Rules (Cm 8423) and the explanatory memorandum on the UKBA website.

See also:

New Government funded courses available for Bulgarian and Romanian EU students

Overseas students trapped in UK visa delays

Immigration Minister now tells foreign students to please come and study in UK

Visa and Immigration Appeals on the increase

Full right of appeal removed for UK family visit visa

Overseas students and workers can qualify for a tax refund 

Visa overstayers will be refused under new UK Immigration Rules

UKBA confirm changes to the Immigration Rules which start on 6 April 2012

How Romanians and Bulgarians working illegally without Yellow Card or papers can legalise their status in the UK

If you need any immigration advice or are worried about the new immigration rules or need help with Sponsorship or Tier 2, Tier 4, applying for university if your college has closed down, Visa, ILR/Settlement, Citizenship, Dependant Visa or an Appeal against a refusal, or if you have been waiting for a reply from the Home Office for longer than a year, please email: 

info@immigrationmatters.co.uk or visit www.immigrationmatters.co.uk for free immigration news updates.

Overseas students and workers can qualify for a tax refund 

You could qualify for a tax refund if you are an overseas student, work permit holder, Tier 1, Yellow or Blue Card holder – in fact any visa type – even if you are no longer legal or even in the UK!

Majestic College offer special packages for EU students and access to fully funded courses with NO UPFRONT FEES. They also have a number of employers looking for staff right now and are willing to employ Bulgarians and Romanians.

For more information call Joanna on 0208 207 1020 or email   info@majesticcollege.org

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4 Responses to “Supreme Court overrules UKBA on Tier 2 working visa refusal”
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