Maria Tukhas v The Secretary of State for the Home Department

For a Tier 2 application, the appropriate salary is ordinarily the applicant’s gross annual salary payable by the sponsor, subject to the specified exclusions in Immigration Rules, Appendix A.

The annual salary rates in Appendix J are based on stated weekly hours. They are pro-rated only where the applicant has contracted weekly hours or is paid an hourly rate. Working more than 39 hours does not itself require pro-rating. Where neither condition is established, the annual salary recorded on the Certificate of Sponsorship is compared directly with the applicable annual rate in the relevant Code of Practice.

The appellant applied in time to extend her leave as a Tier 2 Migrant. The Secretary of State refused the application and made a removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.

The refusal awarded no points for appropriate salary. It treated an annual salary of £22,600 for a 40-hour week as requiring pro-rating to a 39-hour week. The First-tier Tribunal dismissed the appeal, holding that later contractual evidence showed that the appellant had not met the Rules when she applied.

On appeal, the Secretary of State accepted that the refusal had taken an unlawful approach. The central issue was whether Appendix J required the stated annual salary to be pro-rated merely because the appellant worked more than 39 hours weekly.

1. Appeal allowed. The First-tier Tribunal had made an error of law capable of affecting the outcome. Its decision was set aside, and the Upper Tribunal remade the decision by allowing the appeal because the Secretary of State’s decision was not in accordance with the Immigration Rules.
2. Under Appendix A, paragraph 79, points for appropriate salary are based on the gross annual salary payable by the sponsor. No points are awarded if that salary is below the applicable rate for the job in Appendix J.
3. Appendix J, paragraph 14 provides annual rates based on specified weekly hours, including a 39-hour week for the relevant source. Its pro-rating requirement applies only where the applicant has contracted weekly hours or is paid an hourly rate. An applicant’s actual work in excess of 39 hours does not alone trigger pro-rating.
4. The Certificate of Sponsorship recorded a gross annual salary of £22,600. There was no admissible evidence that the appellant had contracted weekly hours or was paid hourly. Her appropriate salary was therefore £22,600, which equalled the applicable rate for occupation code 2126. She was entitled to 20 salary points and, with the 30 points already accepted, met the 50-point requirement in paragraph 245HD.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade the decision in the appellant’s favour.
• First-tier Tribunal: dismissed the appeal in a decision dated 10 June 2015, concluding that the appellant had not met the Rules at the date of application.
• Secretary of State: refused the Tier 2 application on 16 March 2015 and made a removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.