Owolabi (Tier 2 - skilled occupations) Nigeria

Factual and Procedural Background

The Appellant, a citizen of Nigeria, entered the UK under the Highly Skilled Migrant Programme in June 2008. Within his existing leave, he applied on 25 November 2009 for leave to remain as a Tier 2 (General) Migrant, a category for skilled workers with a job offer to fill gaps in the UK labour market. The application included a Certificate of Sponsorship (CoS) from the sponsor, Company A, based in Ilford, Essex, indicating the job title as "Field Immigration Administrator" with an occupational code 2419 (Legal professional not elsewhere classified). The CoS detailed the job description, salary (£24,000 per annum for a 35-hour week), and confirmed compliance with the resident labour market test.

On 8 February 2010, the Respondent refused the application because the salary did not meet the minimum rate required for the occupational code 2419 under the Immigration Rules Appendix A. The Appellant appealed, challenging the Respondent's reliance on guidance not specified in the Immigration Rules, the classification of his job, and the refusal to exercise discretion despite purported flexibility in the Tier 2 system.

The First-tier Tribunal (FTT) dismissed the appeal on 21 April 2010, holding that the Rules allowed no discretion regarding prescribed earnings levels and that the appellant had not demonstrated a mistake in the salary figure. The Appellant sought permission to appeal, focusing mainly on the occupational classification issue.

At the Upper Tribunal hearing, further submissions were obtained, including from the Respondent who acknowledged the possibility that a different occupational code (3520, Legal Associate Professionals) might better fit the Appellant's role. The Tribunal also considered recent Court of Appeal decisions relevant to the legality of relying on guidance and external documents not laid before Parliament.

Legal Issues Presented

1. Whether the Respondent's reliance on extraneous guidance and lists (such as the UKBA list of skilled occupations and Standard Occupational Classification (SOC) codes) not laid before Parliament was lawful.
2. Whether the classification of the Appellant's job under occupational code 2419 was a matter of discretion for the Respondent or solely determined by the Sponsor's designation on the CoS.
3. Whether the Respondent had discretion to grant leave despite the Appellant not meeting the specified criteria under the Immigration Rules, given the stated flexibility of the Tier 2 system.

Arguments of the Parties

Appellant's Arguments

• The Respondent's decision was unlawful as it relied on guidance not incorporated into the Immigration Rules and not laid before Parliament.
• The Respondent wrongly classified the Appellant's job as a legal professional (code 2419) instead of a more appropriate classification, contending that the Respondent had discretion to determine the correct occupational code.
• The Tier 2 system was described as flexible, allowing correction of minor errors, and thus the Respondent should have exercised discretion to grant the application.

Respondent's Arguments

• The occupational classification is determined by the Sponsor's designation on the CoS, and the Respondent's role is limited to verifying compliance with that designation, not to reclassify the job.
• The caseworker's role is to check that the job as stated on the CoS appears on the UKBA list of skilled occupations and that salary meets the appropriate rate, not to independently assess job classification.
• The Respondent denied discretion to deviate from the strict criteria set out in the Immigration Rules regarding points and salary thresholds.
• Although acknowledging that SOC code 3520 might better fit the Appellant's job description, this did not affect the legality of the decision under the Immigration Rules.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal began by addressing the main issue of occupational classification. It found that the Immigration Rules require the Sponsor to specify the job type and that the Respondent's role is limited to verifying the details as provided, not to reclassify the job. The Tribunal concluded that the Respondent’s acceptance of the Sponsor’s classification did not amount to an error of law, despite the possibility of a more appropriate SOC code existing.

Regarding the alleged discretion in the Tier 2 system, the Tribunal noted that the Immigration Rules provide no discretion to caseworkers to award points unless all criteria are strictly met. The purported flexibility allowing correction of minor mistakes did not apply, as no correction was sought before the appeal and the occupational code selection is the Sponsor’s responsibility.

Critically, the Tribunal examined the legality of the Respondent’s reliance on extraneous guidance and the UKBA list of skilled occupations. Applying the principles from Pankina and Alvi, it found that the list of skilled occupations had not been laid before Parliament for the required period and was subject to amendment at the Secretary of State’s discretion. This rendered reliance on the list unlawful and the Respondent’s decision vitiated by legal error.

The Tribunal set aside the FTT’s decision and substituted its own, allowing the appeal. It explicitly limited its conclusions to the Immigration Rules as they existed before the amendments effective 12 August 2010, noting that subsequent changes were not before the Tribunal.

Holding and Implications

The Tribunal’s final decision is to ALLOW THE APPEAL.

This ruling means that the Respondent’s refusal of the Appellant’s application based on reliance on an unlawful list of skilled occupations and related guidance was set aside. The decision clarifies that reliance on extraneous sources not properly incorporated into the Immigration Rules and not laid before Parliament is unlawful. However, the Tribunal did not establish a new precedent but applied existing case law to the facts. The direct effect is that the Appellant’s application must be reconsidered without unlawful reliance on the contested guidance, and the Respondent’s classification of the job stands as per the Sponsor’s designation unless other lawful grounds arise.