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Employment Law

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Veale Wasborough Vizards , 13 JUN 2016

Immigration - is there any leeway when a Tier 2 migrant falls just short of the appropriate salary?

Immigration - is there any leeway when a Tier 2 migrant falls just short of the appropriate salary?
Judith Hockin
Associate, Veale Wasbrough Vizards

In Secretary of State for the Home Department v KG (India), the Court of Appeal held that there is no leeway and that the application of the de minimis principle 'was inapt or misplaced'.

The facts

KG is an Indian citizen who initially came to the UK in 2008 under a Tier 4 visa to study. Following her studies, she was granted leave to remain in the UK under a Tier 1 (post-study) visa which was due to expire in January 2014.

KG, now a qualified nurse, applied for leave to remain as  TIer 2 (skilled worker) migrant. Her application relied on her occupation as a nurse, which required an annual salary of £21,176 based on a 37.5-hour week.

KG's certificate of sponsorship indicated that she earned the required salary but for a 39-hour week, and so the Secretary of State refused her leave. KG appealed to the First-tier Tribunal.

The First-tier Tribunal (FTT)

The FTT upheld KG's appeal. It held that the shortfall in salary only amounted to £22.15 per annum and applied the de minimis principle (ie the law does not concern itself with trivial things).

The judge confirmed that there was no 'near miss' principle applicable to the Immigration Rules (the rules). However, a distinction should be drawn between the concept of a 'near-miss' and the de minimis principle, and that the earnings requirement under the rules could be considered met.

The Secretary of State appealed to the Upper Tribunal.

The Upper Tribunal (UT)

The UT found no error of law in the FTT's determination and concluded that its decision was properly reasoned and correct. The Secretary of State appealed to the Court of Appeal.

The Court of Appeal

The Court of Appeal allowed the appeal. It indicated that a rule is a rule, and a line must be drawn somewhere. The FTT was, therefore, wrong to apply the de minimis principle.

It considered that the question of whether the prospective salary was at or above the minimum rate specified in the Rules' Codes of Practice was only capable of a 'yes or no' answer.

Did KG meet the criteria in the Codes of Practice? The answer was 'no'.

Best practice

This case indicates that there is no leeway when a Tier 2 migrant falls just short of the appropriate salary under the Rules and their Codes of Practice. Employers should be aware that, in order for a Tier 2 visa to be granted, the employee must meet the required salary.


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