COMMERCIAL

Commercial Appeals

We have an experienced team specialising in commercial appeals and pride ourselves on our stellar record. We have represented in nearly every type of Immigration Appeal clients whose applications have been refused on account of a breach by their employer.

Breach of conditions

As an employer you have a legal obligation to comply with the conditions imposed by the UK Border Agency (UKBA) when you applied for your employees to be issued with the old style work permits and since November 2008, Certificates of Sponsorship.

Increasingly, the UKBA are refusing to extend an applicants status in the UK on the basis that their employer failed to notify the UKBA about a change in their circumstances such as promotion, re-location or salary increase. The appeals can be protracted and very expensive.

Litigation

Since the introduction of the Points-Based System there has been an unprecedented level of prosecutions against employers. Immigration legislation provides for penalties of up to £10,000 per illegal worker and the UKBA site is regularly updated with the names of employers found to be in breach.

The total number of penalties already exceeds £14 million. Click here to view latest fines

However, many businesses are now fighting back and challenging the UKBA not only against the fines but the failure of the UKBA to act in accordance with specific codes of practice.

Click the link on the left to view a leading barrister summarising the litigation appeal procedure and the steps you must take as an employer to protect your reputation and your employees.

Webinar

If you would like to join our next webinar on appeals, click here to register.

Summaries
The following are examples of cases in which Davidson Morris have successfully represented both employees and organisations in PBS appeals:

AM v SSHD: AM is an offshore Engineer who entered the UK with a Work Permit. During his employment he was promoted and received a number of pay increases. Although he still had permission to remain in the UK on the basis of this work permit he applied to vary his leave to remain in the UK as a Tier 1(General) Migrant. That application was refused and his leave to remain in the UK curtailed (cancelled) because the Home Office asserted that his employer was obliged to inform them of any significant changes in his employment. The failure to notify of the changes that had taken place in his working conditions constituted a breach of his conditions. AM faced being removed from the UK on account of the alleged breach of conditions. Davidson Morris were instructed to represent AM and lodged an appeal against the decision. Before an Immigration Judge sitting in Glasgow it was argued that the decision of the Secretary of State was not in accordance with the law or the Immigration Rules. It was also argued that the Secretary of State should have used his discretion differently. The appeal was allowed and the Secretary of State did not challenge that decision.

JJ v SSHD: JJ’s employer applied to extend his leave as a Tier 2 (General) Migrant. He claimed 30 points for being in possession of a valid Certificate of Sponsorship for a registered sponsor. He was awarded no points and his application was refused because the Secretary of State asserted that the salary he was to be paid was not at the appropriate rate for the type of job stated in the Code of Practice published by the UK Border Agency. Accordingly, the Secretary of State awarded no points for this and refused the application. The applicant was approaching 10 years leave to remain in the UK and accordingly if the decision was not challenged he would also be deprived of the right to remain permanently in the UK.

Davidson Morris were instructed to appeal against this decision but only received instructions after the time period for appealing had passed. Grounds were submitted in support of the appeal and an application made to extend the time for appealing that decision. The AIT granted the application to extend time for appealing Time and the argument at the Appeal centred upon the interpretation of paragraph 69 of Appendix A of the Immigration Rules. The Immigration Judge dismissed the appeal on the ground that, at the date of the decision, the appellant was not being paid the appropriate salary. Davidson Morris successfully applied for permission to appeal the decision of the Immigration Judge. At the appeal before a Senior Immigration Judge it was successfully argued that the rule must be considered prospective in nature and accordingly the requirements were satisfied by an intention to pay the applicant the necessary level of pay. The Senior Immigration Judge overturned the decision of the Immigration Judge to dismiss the appeal and directed that leave should be granted. The Secretary of State has not appealed against this decision.

Dr AM v SSHD: Dr AM is a Dentist who was granted entry clearance as aWork Permit Holder. The appellant applied for leave to remain in the UK as a Tier 1 (General) Migrant. The appellant was awarded all of the necessary points for that application but his leave was curtailed (cancelled) on account of a failure by his employer to inform them of a “significant increase” in earnings. Davidson and Morris were instructed and lodged an appeal against this decision. At an appeal before the AIT evidence was produced that demonstrated the increases in salary enjoyed by the appellant were the result of increases enjoyed by all Dentists working in the same area and type of practice. Accordingly, it was argued that there was no requirement to notify and therefore there has been no breach of conditions. The Immigration Judge allowed the appeal and directed the Secretary of State to grant the appellant leave to remain in the UK as a Tier 1 (General) Migrant. The Home Office have not appealed against this decision.

YS v SSHD YS is a student studying for the ACCA. Her previous course had finished in April 2009 and her leave had expired on the 30 June 2009. She applied and was accepted by a college to study for the ACCA in a course beginning on the 17 August 2009. That application was refused on account of a new provision incorporated into the Immigration Rules on the 31 March 2009 that “applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant’s current entry clearance or leave to remain expires”. All of the other requirements of the Immigration Rules were satisfied. Davidson and Morris were instructed to act on behalf of the appellant and appealed against the decision. At the appeal hearing the Immigration Judge allowed the appeal on the Ground that decision amounted to a disproportionate interference in the appellant’s right to Private Life (Article 8 of the European Convention on Human Rights).