Working for UK Employers

The Asylum and Immigration Chamber of the Upper Tribunal has issued two new determinations which show that the Court of Appeal's judgment in Pankina goes much further than the UKBA seems to have grasped.

Having lost the decisive case on the lawfulness of the Points Based System the Secretary of State for the Home Department has decided not to pursue an application for permission to appeal to the Supreme Court. Instead the Immigration Rules have been amended so that the criteria which led to the challenges in Pankina and English UK have been transferred from the Policy Guidance into the Rules themselves.

As reported elsewhere on this site the UKBA has responded to recent judgments in which the methodology of the points based system was found to be unlawful not by appealing against those judgments but simply by inserting criteria which were in its policy guidance into the Immigration Rules themselves. The changes are summarised here.

The post-election speculation has finally ended with the government’s announced “four strand policy” starting to take shape.

The Court of Appeal's judgment in Pankina & others v Secretary of State for the Home Department may have holed the UKBA's points based system below the waterline

The senior courts are beginning to consider the points based system and its accompanying regime of sponsorship management.

The points based system is further adjusted by complex new Immigration Rules.

The Asylum and Immigration Tribunal has found that it is open to people applying under the Tier 1 (Post Study Work) category of the Points Based System to rely on money they have been lent to satisfy the maintenance requirements of the Immigration Rules.

Command Paper 7701, presented to Parliament by the Secretary of State for the Home Department on 9th September 2009, makes important changes to the sole representative immigration category, which has until now remained unaltered despite the wholesale changes to other business immigration routes which have characterised the implementation of the UK government's Points Based System.

As has been comprehensively reported on this site - section 15 of the the Immigration, Asylum and Nationality Act 2006 enables the United Kingdom Border Agency (the "UKBA") to require an employer to pay a civil penalty if he or she employs someone (the Act specifies "an adult" - by which is meant someone over the age of 16) who either does not have leave to enter or remain in the UK or whose leave to enter or remain is subject to a condition whereby her or she is not allowed to accept that employment. The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007 fixed the maximum fine payable as £10,000 per employee.