JCWI is acting for a number of care workers – senior carers, as they are known in the various Home Office policies which relate to them. We understand that there are around 20,000 non-EEA migrant workers currently working as senior carers in the UK. Many of them were recruited by agencies, particularly in the Philippines, in the early years of this century, at a time when the UK Government was desperate to fill vacancies in the nursing homes, retirement homes and hospices throughout the country. JCWI understands that it had been hoped that the many vacancies in this field of employment would be filled by the opening up of Europe to the so-called “A8” nationals (mainly from Eastern Europe) in 2004. However, these vacancies were apparently not filled and it was necessary to spread the net more widely.
Courting care workers
There are a number of reasons why efforts were made to recruit such workers from the Philippines in particular. Their nationals are well-educated, many of them qualified as nurses, physiotherapists etc in their home country; furthermore many of them are English-speaking, having studied on courses in which English was the medium of instruction, and have a tradition of working abroad to support their families at home. They came to the UK to do jobs which most British and European workers are unwilling to do, working long hours, often on night shifts, for minimal rates of pay.
Most of those currently working in care jobs in our nursing homes were recruited abroad, granted work permits and brought to the UK with the promise that, after four years (later raised to five years) of hard work, they would have the right to settle in the UK. They resigned from their jobs, sold their property and gave up everything on the basis of a promise of a better standard of living, a good education for their children and the chance to settle.
On 6 April 2011 the UK Government changed the legal requirements for those who come to the UK for work (either on work permits or, more recently, under Tier 2 of the Points Based System) to settle after five years’ continuous work. A new requirement that the person applying to settle had to be earning “at or above” the “correct” rate, as set out in the UK Border Agency’s Standard Occupational Classification Codes of Practice, was introduced. In the case of the senior care workers that rate is £7.02 per hour. However, many senior care workers are not earning this much.
One of the biggest employers of these care workers, Southern Cross, has this year gone into administration, and it has become clear that these homes are not able to pay their employees the expected rate of £7.02 per hour. Furthermore British workers are often not earning as much as this, and it is clearly not possible for the care homes to pay their foreign workers more than the local work force.
A large number of these care workers have been refused settlement since 6 April 2011 because of this rule change. JCWI has now successfully represented two of these care workers in their appeals before the First Tier Tribunal, and is in the process of acting for a number of others.
In summary our appeal was allowed on three grounds:
Firstly, the Tribunal held that SSHD’s decision to refuse settlement on the basis of the new income threshold was unlawful on Pankina grounds. In short, the income levels contained in the codes of practice imported substantive criteria into the Rules. This was exactly what Pankina considered impermissible.
Linked to the above, we argued that there was a breach of legitimate expectation. When the Appellant first came to the UK as 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 ECHR was engaged and that there would a breach in the light of the frustration of the Appellant’s legitimate expectations- the decision could not be in accordance with the law. Even if this was incorrect, policy points we had raised about the new threshold being a backdoor means of bringing in the skills threshold NVQ3/SVQ3 (the revised salary was linked to that skill level) had been waived for care workers could be taken into consideration in proportionality arguments.
We are actively looking to assist foreign migrant workers who have been refused settlement for the reasons mentioned above. If you would like to speak to a legal advisor about this please call 020 7251 8708.JCWI is offering a training course for legal advisors and interested parties on WORKING UNDER THE PBS in London on 22 March 2012. If you are interested in attending please phone 020 7553 7468.