Many of those currently working in care jobs in the UK were recruited abroad, granted work permits and brought to the UK with the promise that after four years, (later revised to five years) of work they would be able to settle in the U.K.
On 6th April 2011 the UK Government changed the legal requirements for those who come to the UK for work and the new requirement was that a person applying to settle had to be earning at or above the correct rate as set out in the UK Border Agency standard occupational classification code of practice. In the case of senior care workers that rate is £7.02 per hour; However, many of them are not earning this much. One of the biggest employers of these care workers (Southern Cross) has this year gone into administration and it became clear that many of these care homes are not able to pay their employees the expected rate of £7.02 per hour. Furthermore British and European workers are often not earning as much as this and therefore it is clearly not possible for care homes to pay their foreign workers more than the local work force.
A large number of senior carers have been refused settlement since 6th April 2011 because of this rule change. JCWI represented two of them in their appeal before the First Tier Tribunal. One of the appeals which was allowed was because one of the Appellants managed to increase her salary to £7.02 per hour. The other who was earning £6.20 per hour had her appeal allowed on three grounds:
- The Tribunal held that the Secretary of State’s decision to refuse settlement on the basis of the new income threshold was unlawful on “Pankina” grounds.
- There was a breach of legitimate expectation. When the Appellant first came to the UK as a work permit holder, she had understood that, provided she remained in work permit employment, doing the same or similar work under similar conditions, she would be in a position to apply for settlement. There was no suggestion at that time that she would need to earn a particular wage.
- In relation to Article 8 ECHR it was accepted that Article 8 was engaged and that there would be a breach in light of the frustration of the Appellant’s legitimate expectation and therefore the decision could not be in accordance with the law.