On 6th April 2017, The Immigration Skills Charge Regulations 2017 came into force. This new piece of legislation provides that a sponsor, subject to certain exemptions must pay a charge each time it assigns a certificate of sponsorship to a skilled worker.
A sponsor must pay a charge to the Secretary of State each time it assigns a certificate of sponsorship to a skilled worker. Failure to pay the charge to the Secretary of State means that the purported assignment of certificate is invalid whilst the obligation to pay the charge is outstanding.
Additionally, as the Secretary of State can refund or waive part or all the charge, failure to pay the outstanding charges does not prevent the valid assignment of a certificate of sponsorship when the Secretary of State waives part or all the charge.
However, there are certain instances whereby a sponsor is not obligated to pay the charge when assigning a certificate of sponsorship to a skilled worker –
(a) in respect of an occupation coming within any of the following codes in version 5.1 of the Standard Occupational Classification 2010 Index:
(i) 2111 (chemical scientists);
(ii) 2112 (biological scientists and biochemists);
(iii) 2113 (physical scientists);
(iv) 2114 (social and humanities scientists);
(v) 2119 (natural and social science professionals not elsewhere classified);
(vi) 2150 (research and development managers);
(vii) 2311 (higher education teaching professionals);
(b) who is intended to be the subject of an intra-company transfer as a graduate trainee, that being a temporary posting for a period of no more than 12 months, to the United Kingdom branch of a multi-national organisation as part of a structured graduate training programme, which clearly defines progression towards a managerial or specialist role;
(c) in respect of whom the sponsor has already assigned a certificate of sponsorship (“the first certificate”), but only to the extent that any subsequent certificate of sponsorship is assigned in respect of a period of prospective leave which does not exceed the period in respect of which the first certificate was assigned;
(d) who has leave to enter or leave to remain for the purpose of study;
(e) in circumstances where—
(f) that sponsor has already assigned a certificate of sponsorship to that individual (“the first certificate”); but
(g) by virtue of paragraph (d), the sponsor was not obliged to pay the charge when the first certificate was assigned; and
(h) the assignment of any subsequent certificate of sponsorship relates to the same role as the first certificate;
(i) who seeks entry clearance for a period of less than six months.
Tier 4 Pilot is for students who seek to study a Masters course at the University of Cambridge, University of Oxford, University of Bath or Imperial College London for 13 months or less, which excludes the period for pre-sessional course.
Pilot allows students to stay longer after the end of the course, specifically, Tier 4 Pilot students are allowed stay for the full length of the course plus six months after the course. Another benefit of Tier 4 Pilot students is submitting fewer documents with their applications. Tier 4 Pilot Students are not required to submit certificate or documents showing their previous qualification or documents showing that they meet the maintenance requirements.
However, they must meet the rest of requirements and hold documentary evidence as required. The Entry Clearance Office or Home Office might request some additional documents even where they qualify for the pilot.
Please contact us directly should you have any further queries in the meantime.
This case concerns the appeal related to entitlement to “subsidiary protection status” under Articles 2 and 15 of the EU Council Directive 2004/83/EC on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who need international protection. The crucial objective of the Directive is to ensure that EU member states apply common criteria when identifying an individual in need of international protection and that minimum level of benefits is available to them.
The appellant (national of Sri Lanka) who entered the UK in January 2005 (aged 28) was given a leave to enter as a student. The leave was extended to September 2008 and shortly before its expiry the applicant applied for a further extension which was refused. The applicant claimed asylum in January 2009 on the grounds that he had been a member of the Liberation Tigers of Tamil Eelam. He had been detained and tortured by the Sri Lankan security forces and if returned would be at risk of further ill-treatment for the same reason. The application was refused. The responded did not dispute the appellant’s torture by LTTE, however it was not accepted that the applicant would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he returned.
The appellant appealed against the decision and his appeal formed part of the decision by the Upper Tribunal. The Upper Tribunal had:
The Upper Tribunal accepted that the appellant had a genuine fear of return to Sri Lanka but it rejected his appeal under the Refugee Convention and the Qualification Directive because it did not accept that he was of any continuing interest to the authorities in Sri Lanka. The appeal was allowed under Article 3 of the European Convention of Human Rights for the underlying fact that the Upper Tribunal is not satisfied that returning the appellant to Sri Lanka would comply with the UK’s international rights under Article 3 ECHR.
The Court of Appeal upheld the decision of the Upper Tribunal. Judge Maurice Kay LJ stated in his judgment: “the Qualification Directive was not intended to catch Article 3 cases where the risk is to health or of suicide rather than of persecution”. The judgment of the judge referred to the decision of the ECHR in N v United Kingdom. The Counsel for the appellant stressed the crucial difference to the applicability of the Qualification Directive that the Sri Lankan state was responsible for the appellant’s mental illness by its past ill treatment, however the Judge considered that this aspect stretched the concept of subsidiary protection too far.
It has been argued that the UT and the Court of Appeal should not have regarded appellant’s mental illness as a ‘naturally occurring illness’ as it was caused by torture at the hands of the Sri Lankan authorities. Instead the UT accepted that the appellant’s return would cause him severe mental harm which amounts to violation of ECHR Article 3 and so for similar reasons it should have accepted that the appellant was entitled to subsidiary protection under the Qualification Directive.
The Secretary of State for the Home Department submitted that the UT and the Court of Appeal were right. There exists a risk of serious harm as defined in Article 15 of the Qualification Directive. Directive aims to provide international protection against the risk of serious harm from future ill treatment either by the state or by a third party. The following question of principle was referred to the Court of Justice: “Does Article 2 read with Article 15(b) of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?”
The Appellant was a citizen of Vietnam, who made an application for further leave to remain under Tier 4 (General) Student visa, which was refused on 9th November 2014 by the Secretary of State for the Home Department. The main ground was on the basis of non-compliance with the maintenance requirements. As according to the Immigration Rules requirements, the Appellant was required to have at least £2,040 during the relevant of 28 consecutive days. However, the Appellant’s bank statements demonstrated a balance of £2,028.32. Due to which, the Appellant’s application for further leave to remain was refused. The Appellant’s appeal to the First-tier Tribunal was successful according to the principle of de “minimis” by giving the following explanation:
– The shortfall was occurred in the Appellant’s bank account by £11.68 during the first 20 days of the 28-day period;
– However, on the 21st day, the balance was reduced by £1.69;
– On the 22nd till 28th days the balance was above the minimum required by £3.31;
Therefore, the Judge’s reasoning was that the non-compliance was so minimum, thus the Secretary of State should have considered as complied with the Immigration Rules. However, the Secretary of State appealed to the Upper-tier Tribunal stating the FtT judge erred in law.
De Minimis Principle
The First-tier Tribunal made its decision based on the following:
– Firstly, the Judge referred to R (Behary) v Secretary of State for the Home Department  EWHC 3575 (Admin) where Tier 4 (General) was refused on the grounds that out of time, was received two days after the expiry of extant leave. Deputy Judge accepted this by applying de minimis principle. However, the Judge rejected this argument on the basis of two grounds: non-compliance with the Immigration Rules cannon be considered minimum and when non-compliance occurred legal certainty principle should be applied by carrying out “bright line”;
– Secondly, in the case of MD (Jamaica) and GE (Jamaica) v SSHD  EWCA Civ 213 the first Appellant was over stayer for two periods within 12 years, of some three weeks and four months’ duration respectively, where the second Appellant was over stayer for ten weeks due to having made a late application, which was eventually successful. However, Dyson LJ dismissed both appeals;
– The final landmark case is Miah and Others v SSHD  EWCA Civ 261, where the Appellant was eligible for Indefinite Leave to Remain as a work permit holder, however, during the qualifying period he had no extant work permit for 2 months. The Appellant argued that “near miss” must be forgiven.
However, Stanley Burton LJ stated that “near miss” is not the same as “de minimis” principle.
Therefore, in this case not complying with the five years’ lawful residence was not de minimis.
The judge dismissed the appeal as there is no near-miss principle applicable to the Immigration Rules.
The Mccloskey concluded that the FtT erred in law as the appellant did not comply with mandatory requirement of the Immigration Rules, which is considered rigid.
The principle de minimis does not apply in applications of the Immigration Rules. The principle is not used in a context where the question is whether a requirement of the Immigration Rules has been observed as both Immigration Rules and the Point Based System clearly states what requirements to be met or points to be obtained. Thus, de minimis is a mere substitute for sliding scale or near miss principles.