Tukhas (para 245HD(f): “appropriate salary”)

A perhaps slightly esoteric case has been reported on Tier 2 visas and salary levels; Tukhas (para 245HD(f): “appropriate salary”).

However this is quite an interesting case, particularly because, anecdotally, I think that it illustrates Home Office practice for many years has been wrong. The case highlights that the Immigration Rules, specifically Appendix J, do not always require that an applicant's salary figure under Tier 2 is pro-rated for their weekly hours.

At Appendix J, which contains all of the various job codings and minimum salaries, it states:

"Where the applicant has contracted weekly hours or is paid an hourly rate, the rates must be pro-rated accordingly"

the issue is therefore that contractually an applicant may not have set weekly hours or be paid by the hour- and simply be given an annual salary. As is stated at Appendix A: "“The points to be awarded for appropriate salary will be based on the applicant’s gross annual salary to be paid by the sponsor"

The important factor however is that when sponsors come to issue the Certificate of Sponsorship on the Sponsorship Management System (SMS) they must ALWAYS input weekly hours or the system will not allow the certificate to be issued. In my experience the Home Office then will always pro-rate the salary and sometimes to the detriment of the applicant; namely that the salary figure, if based on a greater number of weekly hours than the salary thresholds in Appendix J, will be reduced below the acceptable minimums. The point being that the applicant may not actually have weekly hours, but the sponsor has just inserted this to comply with the system for issuing certificates.

It will be interesting to see if this short case alters that, I have a suspicion the Home Office may not appreciate its effect and the current system constraints may cause this to happen again.