The immigration rules do not permit switching from Tier 2 General route into PBS dependant category – this restriction has been subject of judicial review in the case of Shuai Zhang where the High Court found the restriction incompatible with the claimant’s right to private and family life.
In this case the claimant was a Tier 2 migrant who had been made redundant in her sponsored employment and was unable to find an alternative Tier 2 sponsor to remain in this category. Her husband was in the UK as a Tier 1 Post Study Work visa holder and it was logical for the claimant to switch into dependant’s status. This “switch” is explicitly not permitted by the Immigration Rules which require partners of Points Based System migrants to make an initial application for entry clearance in this category outside the UK. The claimant followed the rules, but later challenged legality of the immigration rule which required her separation from her husband and had led to a loss of a job offer while waiting for entry clearance.
Rather controversially the Secretary of State argued that that claimant had to apply for variation of status within the UK relying on her established private and family life and Rule 2 of the Immigration Rules which require the Home Office officials to act in compliance with the Human Rights Act.
The Court rejected this argument on the grounds that the Secretary of State viewed the Immigration Rules as compliant with the Human Rights Act.
There is a helpful comment from Mr Justice Turner that an application outside the rules would not have been out of place in the expectation that the Secretary of State would exercise her residual discretion to grant leave in circumstances falling outside the scope of the Immigration Rules.
The Court declared that application of the blanket requirement to leave the country imposed by rule 319C(h)(i) was unsustainable and found that the rule could not lawfully be applied to the claimant whose immigration history had been impeccable and who was a valuable contributor to the economic wellbeing of the UK.
