The recent case of Maria Tukhas and secretary of state for the Home Office has given sponsoring employers in the UK further guidance about how to calculate an employee’s annual salary in granting points under Tier 2. Click here for the decision.
As clarified in this case, a migrant worker applying for leave to remain must score points in order for a Certificate of Sponsorship to be assigned to them. Points are awarded for a prospective salary.
In this case, the Home Office awarded Ms. Tukhas 30 out of the required 50 points. She was awarded zero points in respect of the “appropriate salary” category. The Home Office argued that the minimum acceptable rate of pay for a 39-hour working week for Ms. Tukhas’ prospective employment was £22,600 a year, yet her Certificate of Sponsorship stated that her salary would be £22,600 a year for a 40-hour week. This equated to £22,035 a year for a 39-hour week, so she did not meet the necessary threshold.
Paragraph 79 of Appendix A of the Immigration Rules states that: “The points to be awarded for appropriate salary will be based on the applicant’s gross annual salary to be paid by the sponsor.”
Ms. Tukhas appealed against the Home Office’s decision. It was held that, other than cases in which an applicant has contracted weekly hours or is paid an hourly rate, the correct salary under the Immigration Rules is an applicant’s gross salary paid by the sponsoring employer (subject to the conditions set out in paragraph 79(i) to (iii), which were not relevant in this case).
There was nothing to suggest that Ms. Tukhas was contracted to work weekly hours or paid an hourly rate. As such, the correct salary was £22,600. No further pro-rating was necessary; Ms. Tukhas, therefore, did meet the necessary salary requirement.
Surely any simplification of this process, such as this case offers, will always be welcome news to employers with employees operating under a Tier 2 visa―as well as to the migrants themselves.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.