Maria Rosario Cabrera Ferrer v The Secretary of State for the Home Department

A requirement which a migrant must satisfy to obtain leave must appear in the Immigration Rules under section 3(2) of the Immigration Act 1971. The Secretary of State cannot rely on guidance to impose a determinative condition of success. A purely procedural requirement is different.

Where relevant rules or published materials are ambiguous, they may be interpreted on the footing that Parliament is unlikely to have approved an unfair rule affecting a limited class without a disclosed policy justification. A work-permit holder who could not fall within either category of the published appropriate-rate guidance was not required by paragraph 134(iv) to meet an hourly rate specified in that guidance.

The appellant, a Philippine citizen admitted as a work-permit holder, applied for indefinite leave to remain after almost five years’ lawful residence. The Secretary of State refused because her hourly wage was below the rate in the code of practice for Tier 2 sponsors.

The First-tier Tribunal dismissed her appeal. It held that the hourly-rate guidance could lawfully be used and that removal would be proportionate under Article 8. Permission was initially granted only on the Article 8 ground, but the Upper Tribunal permitted the other grounds and a later ground based on Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC).

The central issues were the effect of guidance after Alvi [2012] UKSC 33, the construction of paragraph 134(iv) of the Immigration Rules, fairness, and Article 8.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The Upper Tribunal re-made the decision by allowing the appeal under the Immigration Rules.

2. Following Alvi [2012] UKSC 33, a requirement whose non-fulfilment leads to refusal of leave is an immigration rule for section 3(2) purposes. It must therefore be laid before Parliament. The required hourly rate in the Tier 2 guidance was such a determinative requirement and could not lawfully be relied upon to refuse the application. The conclusion did not depend on whether the guidance pre-dated the associated rule. There is only limited scope for a rule to refer to an objective, uncontroversial formula independent of the Secretary of State’s functions.

3. Independently, the appellant did not fall within either category of salary rate in the relevant guidance. Transitional arrangement D required a certificate of sponsorship, which she neither had nor could have had as a work-permit holder. Paragraph 134(iv) therefore did not require her to meet an appropriate hourly rate.

4. The appellant had no legitimate expectation, arising from the work-permit scheme, that settlement conditions would remain unchanged. Unlike the HSMP scheme, it had not been presented as preserving conditions for eventual settlement. Nevertheless, fairness remained relevant to construction. Where provisions are ambiguous or obscure, they may be read on the assumption that Parliament did not intend unexplained unfair treatment of a limited class.

5. The Tribunal also gave procedural guidance. A limited grant of permission must clearly identify the refused grounds and notify the applicant of the right to seek Upper Tribunal permission on them. In the Immigration and Asylum Chamber, additional grounds require Upper Tribunal permission. Once a First-tier Tribunal decision is set aside, however, the re-making exercise is not necessarily confined to the pleaded errors or issues raised below.

6. Article 8 was unnecessary to the result. Had removal remained in issue, it would have been disproportionate on these particular facts because the public interest was materially reduced by the unfairness affecting a limited category of applicants.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s determination, and re-made the decision under the Immigration Rules.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal in a determination dated 23 August 2011.