Adegoke Festus Owolabi v The Secretary of State for the Home Department

For the pre-12 August 2010 Tier 2 scheme, the Secretary of State could not lawfully refuse an application by relying on paragraph 69 of Appendix A to the Immigration Rules HC395. The rule required use of the UKBA list of skilled occupations, but that list was published after the relevant Rules were laid before Parliament and remained capable of amendment by the Secretary of State.

That external source could not impose or determine an eligibility requirement outside parliamentary scrutiny. The Certificate of Sponsorship system otherwise required the sponsor and migrant, rather than the caseworker, to select the occupational classification; the checking process did not confer a general power to reclassify the job or discretion to waive prescribed points requirements.

The appellant, a Nigerian citizen with leave under the Highly Skilled Migrant Programme, applied in November 2009 for leave to remain as a Tier 2 (General) Migrant. His sponsor's Certificate of Sponsorship identified his job as code 2419, a legal professional not elsewhere classified, and recorded a salary below the rate applied by the respondent for that code.

The Secretary of State refused the application for insufficient points under Appendix A to the Immigration Rules HC395. An Immigration Judge dismissed the appeal in a determination notified on 21 April 2010. The appellant challenged the occupational classification, the absence of flexibility, and the lawfulness of reliance on the UKBA material governing skilled occupations and salary rates.

The central issue was whether the respondent could lawfully rely on paragraph 69 of Appendix A in its pre-HC382 form.

1. Appeal allowed. The First-tier Tribunal had materially erred in law. Its decision was set aside and the Upper Tribunal substituted a decision allowing the appeal.

2. The Tribunal rejected the challenge to the occupational classification. Under Appendix A, the sponsor and migrant had to specify the employment and occupational code in the Certificate of Sponsorship. The CoS Checking Service's role was confined to recording the stated job and checking the stipulated criteria. Nothing in the Rules required or authorised a caseworker independently to select a more appropriate occupation code. The fact that another code might better describe the appellant's work did not establish an error in the Immigration Judge's decision on that ground.

3. The Rules also gave no discretion to award points where the prescribed criteria were not met. General statements that the points-based system was flexible did not assist where neither the sponsor nor the appellant had corrected the relevant Certificate of Sponsorship details.

4. However, paragraph 69 required both that the recorded job appear on the UKBA list of skilled occupations and that the recorded salary meet the applicable rate. Although the Tribunal did not need to decide whether the Codes of Practice themselves were a permissible external source, the skilled-occupations list had not been placed on the UKBA website until after Appendix A had been laid before Parliament. It was also capable of amendment by the Secretary of State.

5. Applying Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719 and R (Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681, reliance on that list was unlawful. It had not been subjected to the required parliamentary scrutiny and could be altered outside that process. The respondent could therefore not lawfully use the list as the starting point for classifying the appellant's job and applying the associated code requirements.

The ruling was confined to Appendix A before the amendments made by HC382, effective from 12 August 2010.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal's decision for material legal error, and substituted a decision allowing the appeal: [2011] UKUT 313 (IAC).
• First-tier Tribunal: Immigration Judge Bruce dismissed the appeal in a determination notified on 21 April 2010. No citation was stated.