Skilled workers’ rule is unlawful

A long-established immigration rule that requires family members switching visa categories to leave the UK and apply from abroad has been held unlawful.

Dr Zhang, an academic with a Tier 2 skilled worker category visa, was made redundant and applied for a new visa to become her new husband, Dr Ng’s points-based system “dependant”. Under the immigration rules, she had to return to China for two months to do this, which meant she had to decline a research post.

Ruling in R (Zhang) v Secretary of State for the Home Department [2013] EWHC 891 (Admin), Mr Justice Turner found there had been a disproportionate interference with Dr Zhang’s Art 8 right to family life.

Turner J said Dr Zhang was in a loving marriage and had no real option but to endure separation from her new husband for about two months. He added tht she “had an impeccable immigration record and both she and her husband were very likely to continue to make a valuable contribution to the economic wellbeing of the UK...The claimant is the sort of applicant in respect of which immigration should be encouraged rather than deterred.”

He said the rule in question, r 319C(h)(i), could not lawfully be applied to the applicant but that it was up to the Home Secretary to decide whether to keep it in a limited form or discard it altogether.

Shahram Taghavi, head of immigration at Charles Russell, who acted for Dr Zhang, said the decision means resident family members of investors, entrepreneurs and skilled workers will be able to switch from their current visa into a “Dependant of a Points-Based System Migrant” visa from within the UK, rather than having to leave the UK and apply from abroad.