Mohamed Mufthi Abdul Aleem v The Secretary of State for the Home Department

Guidance issued under the points-based immigration system cannot add a substantive eligibility requirement absent from the Immigration Rules. Whether earnings are earned in a foreign country for the overseas-earnings uplift depends on the Rules and the proper character of the earnings, rather than a guidance requirement that the applicant must physically have worked there.

Self-employment income paid by, taxed in, and connected with a business in the foreign country may be treated as earned there although the services were performed remotely from the United Kingdom. Guidance also cannot extend an express exclusion from the uplift to a category of applicant not specified in the Rules.

The appellant, a Sri Lankan national last granted leave as a Tier 4 (General) Student, applied for leave to remain as a Tier 1 (General) Migrant. He claimed points for consultancy income paid in Sri Lankan rupees by a Sri Lankan company, credited to a Sri Lankan account and taxed in Sri Lanka. He performed the services remotely while in the United Kingdom.

The respondent refused the application because published guidance treated the income as United Kingdom earnings: it required work to have been physically undertaken in the country whose uplift was claimed. The First-tier Tribunal upheld that conclusion, despite finding that the documentary requirements had been met. The central issue was whether the income was overseas earnings under Appendix A to the Immigration Rules, so that the Sri Lankan uplift applied.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision on the uplift issue, preserved its finding that the documentary requirements were met, and remade the decision by allowing the appeal.

2. Under paragraph 245C and Appendix A to the Immigration Rules, an applicant who meets the prescribed points requirements is entitled to leave. Following Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, the issue had to be determined by the Rules, not by additional criteria found only in guidance. Guidance cannot alter the substantive effect of Rules that have received parliamentary scrutiny.

3. Paragraph 21 of Appendix A applied to the consultancy income. The income was properly regarded as earned in Sri Lanka. It was payment for services supplied to a Sri Lankan company, paid in Sri Lankan rupees into an account there, and subject to Sri Lankan income tax. The Rules contained no express or necessarily implied condition that the earner be physically present in the country when earning the income.

4. The guidance’s physical-presence requirement therefore imposed an additional condition and was ineffective. That conclusion also accorded with the purpose of the uplift: to equalise earnings arising in different jurisdictions by reference to local conditions and income levels.

5. Paragraph 22 expressly excluded certain applicants from an overseas-earnings uplift. It did not include a person whose last leave was as a Tier 4 (General) Student. Guidance could not extend that exclusion to such an applicant. As the uplift gave the appellant the required points, he qualified for leave to remain.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision on the overseas-earnings uplift, and remade the decision.
• First-tier Tribunal (Immigration and Asylum Chamber): In a determination promulgated on 5 October 2010, found that the documentary requirements were satisfied but dismissed the appeal on the basis that the work was physically undertaken in the United Kingdom and did not qualify for the overseas uplift.