Senior Carers win first stage in fight for right to settle in the UK

The Joint Council for the Welfare of Immigrants (JCWI) has successfully represented 2 non-EEA care workers who were refused settlement in the UK due to recently changed immigration rules. The JCWI is currently actively looking to assist migrant care workers who have been refused settlement for the reasons mentioned below.

(CC) Image: glenmcbethlaw/Flickr

On 6 April 2011 the UK Government changed the legal requirements for those who come to the UK for work (either on work permits or, more recently, under Tier 2 of the Points Based System) to settle after five years’ continuous work. A new requirement  that the person applying to settle had to be earning “at or above” the “correct” rate, as set out in the UK Border Agency’s Standard Occupational Classification Codes of Practice, was introduced. In the case of the senior care workers that rate is £7.02 per hour. However, many senior care workers are not earning this much.

One of the biggest employers of these care workers, Southern Cross, has this year gone into administration, and it has become clear that these homes are not able to pay their employees the expected rate of £7.02 per hour. Furthermore, British workers are often not earning as much as this, and it is clearly not possible for the care homes to pay their foreign workers more than the local work force.

Successful Appeal

A large number of these care workers have been refused settlement since 6 April 2011 because of this rule change. JCWI has now successfully represented two of these care workers in their appeals before the First Tier Tribunal, and is in the process of acting for a number of others.

In summary our appeal was allowed on three grounds:

Firstly, the Tribunal held that SSHD’s decision to refuse settlement on the basis of the new income threshold was unlawful on Pankina grounds. In short, the income levels contained in the codes of practice imported substantive criteria into the Rules. This was exactly what Pankina considered impermissible.

Linked to the above, we argued that there was a breach of legitimate expectation. When the Appellant first came to the UK as work permit holder, she had understood that provided she remained in work permit employment, doing the same or similar work under similar conditions, she would be in a position to apply for settlement. There was no suggestion at that time that she would need to earn a particular wage.

In relation to Article 8 ECHR, it was accepted that Article 8 ECHR was engaged and that there would a breach in the light of the frustration of the Appellant’s legitimate expectations- the decision could not be in accordance with the law. Even if this was incorrect, policy points we had raised about the new threshold being a backdoor means of bringing in the skills threshold NVQ3/SVQ3 (the revised salary was linked to that skill level) had been waived for care workers could be taken into consideration in proportionality arguments.

If you are affected and would like to speak to a legal advisor about this please call 020 7251 8708 (JCWI).

Find out more on the JCWI website.