Many of us employ immigrant workers, and the domestic staffing area is no exception, but following a Supreme Court ruling, the “Skilled Occupation Test” which has been used as a yardstick for allowing foreign nationals to work and remain in the UK is flawed.
It turns out that the test is unlawful as the list of skilled occupations that are considered to provide qualifying points did not form part of the Immigration Rules, as it was contained in a document that had not been laid before Parliament.
So now the government has to carry out a quick re-think and clarify what is now a very unclear situation.
The Points-Based System (PBS) was introduced in 2008 to replace the then existing work permit system. Migrants from outside the European Economic Area (EEA) had to be able to demonstrate that they possessed certain attributes before they could get permission to enter or remain in the UK. Points were awarded for various attributes under each category or ‘tier’ which included age, prospective earnings, qualifications and English language ability.
The issue has come into the spotlight following a case where Hussain Alvi, a Pakistani national, had been refused leave to remain in the UK after the PBS system came into force as his job as a physiotherapy assistant did not meet the level of skilled occupation required for the purposes of the Tier 2 (General) route. He came to the UK in 2005 as a student and was granted leave to remain under the previous permit system. The relevant code of practice document, published by the Home Secretary on the UK Border Agency (UKBA) website, states that in order to qualify the job must need a qualification above NVQ or SVQ level 3.
The Immigration Rules state that no points will be awarded under the system unless the job in question appears on the list, and that the worker will be paid at a rate at or above the appropriate rate for the job as stated in that list. In some cases, a sponsoring employer must also be able to prove that it has met the requirements of the resident labour market test as set out in UKBA guidance.
In his leading judgment, Lord Hope (Supreme Court) said that the Home Secretary did not have the power to control immigration other than through the means set out in the Immigration Rules.