In a recent case heard on 22 January 2016 at the Upper Tribunal and judgement promulgated on 14 April 2016, the UK Home Office has updated today (11 January 2017) certain new guidance in relation to Tier 2 “appropriate salary” rates. In the case of Maria Tukhas v Secretary of State for the Home Department  UKUT 00183 (IAC), the Upper Tribunal confirmed the interpretation of paragraph 14 of Appendix J of the Immigration Rules is that “other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A”. This article will assist you in having a better understanding in relation to “appropriate salaries” when it comes to Tier 2 work visa applications.
UK Tier 2 Work Visa: Appropriate Salary?
The Tier 2 category allows foreign highly skilled workers to obtain a right to work in the UK for one specific employer. As similar to other immigration categories, there are several requirements that an applicant will have to satisfy to be successful in a Tier 2 application. One of the main requirements for Tier 2 are job suitability and appropriate salary. In accordance with Appendix J of the Immigration Rules, different job titles are attributed to different Standard Occupational Classification (SOC) Codes and each occupation has been assessed and given a relevant National Qualification Framework (NQF) Level. In order to be eligible for a Tier 2 visa, the job offered must be of NQF Level 6 or higher. Further, each occupation under a SOC code has its corresponding appropriate minimum rate of salary for “new entrants” and “experienced workers”. In several occasions, the appropriate salaries are also referred as “minimum salary threshold”.
The appropriate salaries are reviewed regularly by the Home Office and their main source is from the Annual Survey of Hours and Earnings. Therefore, in order to be eligible to apply for a Tier 2 visa, you must have been offered a job of the correct NQF level and the salary offered must meet the minimum threshold corresponding with the job you have been offered.
UK Tier 2 Work Visa: The Facts of the Case of Tukhas v SSHD
The appellant was refused a Tier 2 work visa by the Home Office on the basis that her prospective annual salary did not meet the minimum requirements. Upon receiving a job offer, the appellant was issued a Certificate of Sponsorship (COS) by her employer (being issued a valid COS is also one of the requirements for a Tier 2 visa). On this COS, it was stated that she will be working 40 hours per week and her annual salary will be £22,600.
The Immigration Rules that applied to the appellant at the time of application and relevant to her occupation states the following: “the minimum acceptable rate of pay for a 39 hour working week for your prospective employment is £22,600”.
On the face of it, the appellant seem to have satisfied the requirement. However, the Home Office original decision maker refused the application by calculating an annual pro-rata salary on the basis that she will be working for 39 hours per week instead of 40 hours per week. As such, her prospective annual salary for a 39 hour working week became £22,035. Therefore, the application was refused because the annual salary of £22,035 falls short of the minimum requirement of £22,600.
The appellant appealed to the First-tier Tribunal but were unsuccessful as the Tribunal was not satisfied that the decision was unlawful or not in accordance with the Immigration Rules. The appellant then appealed to the Upper Tribunal and submitted that “the Secretary of State took an unlawful approach to the issue of “appropriate salary” in her decision letter”.
UK Tier 2 Work Visa: The Judgement of the Case of Tukhas v SSHD
The Upper Tribunal ruled that the First-tier Tribunal’s decision contains an error on a point of law and is therefore set aside. The Upper Tribunal further clarifies the clear wordings of the Immigration Rules in relation to Tier 2 work visas, such that unless the applicant is in fact contracted to do work on a hourly basis, the appropriate salary that should be assessed will be the applicant’s gross annual salary.
As there was no admissible evidence which supports any connection that the appellant was contracted to work on an hourly basis or were to be paid an hourly rate, the rules on appropriate salary in relation to hourly rates did not apply. Therefore, the appellant did in fact meet the minimum salary requirement at the time of her application and the appeal was successful.
UK Tier 2 Work Visa: Home Office Updated Guidance
In light of this ruling, the Home Office updated their guidance in relation to appropriate salary and made clearer the interpretation of relevant Immigration Rules to be in line with the judgement. There are, however, still several other strict requirements that an applicant will have to satisfy to be successful in their Tier 2 work visa application.
The Immigration Rules are complex as it tries to accommodate as many scenarios and situations as possible. Further, the rules are often changing to be in line with new court judgement and perhaps government policies. It is important to know which rules apply to you and to be up to date with all relevant changes such to ensure the highest possibility of success in your application. If you are unsure as to whether certain rules apply to you or which rules are relevant to your circumstances, you should always contact us for legal advice and guidance.
Successful UK Tier 2 Entry Clearance or Leave to Remain Application
Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone case assessment even if you wish to consider other advisers. If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.
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We can ensure that you remain compliant with your visa conditions and will be able to demonstrate your eligibility for an extension visa or possibly indefinite leave to remain. Get in touch with our business immigration lawyers now on 02071830570. You can also reach us via our contact form.