IK (Immigration Rules – construction – purpose)

JurisdictionEngland & Wales
JudgeSenior Immigration Judge P R Lane
Judgment Date04 November 2009
Neutral Citation[2010] UKAIT 2
CourtAsylum and Immigration Tribunal
Date04 November 2009

[2010] UKAIT 2

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Storey

Senior Immigration Judge P R Lane

Between
IK
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr R. Solomon, Counsel, instructed by Greater London Solicitors

For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer Treasury.

IK (Immigration Rules — construction — purpose) Pakistan

The finding in AM (Ethiopia) , [2008] EWCA Civ 1082, that the Immigration Rules have no overarching purpose and must be construed sensibly according to the natural meaning of the language employed, is an approach approved by the Supreme Court inAhmed Mahad and others [2009] UKSC 16. The existence of paragraph 245V, which describes the purpose of the Tier 1 (post-study work) “route”, does not entitle decision makers to re-write specific requirements of the Rules, which are on their face sufficiently plain, whether or not a judicial fact-finder thinks the provision in question might have been differently phrased, compatibly with the purpose articulated in paragraph 245V.

DETERMINATION AND REASONS
1

The appellant, a citizen of Pakistan born on 16 March 1980, arrived in the United Kingdom on 12 September 2004 as a student. He was subsequently granted variations of leave to remain in that capacity until 10 December 2007, when he was granted a variation of leave to remain as a participant of the International Graduate Scheme until 10 December 2008. On 14 November 2008 the appellant applied for a variation of leave, to remain in the United Kingdom as a Tier 1 (post-study work) migrant. On 3 February 2009 the respondent refused the appellant's application.

2

The appellant appealed against that decision to the Tribunal, which heard his appeal at Hatton Cross on 2 April 2009. The Immigration Judge allowed the appellant's appeal under the Immigration Rules. On 3 July 2009 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002, on the application of the respondent, who contended that the Immigration Judge had erred in law by having regard to the appellant's overdraft facility in the sum of £2,000, notwithstanding that the appellant did not have what was said by the respondent to be the requisite £800 of savings available to him at the material times prior to the making of the application.

3

The letter of decision of 3 February 2009 sent by the respondent to the appellant stated that the appellant had claimed 10 points for funds under Appendix C of the Immigration Rules but that the documents provided by the appellant “do not demonstrate that you have been in possession of £800 for the period specified in the guidance. The Secretary of State is therefore not satisfied that you have achieved 10 points under Appendix C of the Immigration Rules.” The letter went on to say that the appellant accordingly did not satisfy the requirements of the Immigration Rules and it had been decided to refuse his application under paragraph 245Z as he did not meet the requirement of paragraph 245Z(e).

4

The relevant part of paragraph 245Z reads (or at the relevant date read) as follows:–

245Z. Requirements for leave to remain

To qualify for leave to remain as a Tier 1 (post-study work) migrant, an applicant must meet the requirements listed below. Subject to paragraph 245ZA(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(e) The applicant must have a minimum of 10 points under Appendix C.”

5

Appendix C to the Rules deals with maintenance (funds). The relevant provisions read as follows:–

“1. An applicant applying for entry clearance or leave to remain as a Tier 1 Migrant (other than as a Tier 1 (Investor) Migrant) must score 10 points for funds.

2. 10 points will only be awarded if an applicant:

(b) applying for leave to remain, has the level of funds shown in the table below and provides the specified documents.

Level of funds

Points

£800

10

3. The applicant must have the funds specified in paragraph 2 above at the date of the application and must also have had those funds for a period of time set out in the guidance specifying the specified documents for the purposes of paragraph 2 above.”

6

Paragraph 91 of the relevant guidance stated that, in order to qualify for leave to remain,

“applicants must show that they have enough money to support themselves. The funds requirements are detailed below.

• applicants in the United Kingdom seeking Further leave to remain must have at least £800 of personal savings.”

7

Under the heading “ Documents we require”, the guidance required that the relevant evidence “must be in the form of cash funds. Other accounts or financial instruments such as shares, bonds, pension funds etc, regardless of notice period are not acceptable.” Referring to Appendix C as stating that “only specified documents will be accepted as evidence of this requirement, the guidance then set out the specified documents as being:–

“1. Personal bank or building society statements covering the three-month period immediately before the application: the personal bank or building society statements should clearly show:

  • • the applicant's name;

  • • the account number;

  • • the account of the statement;

  • • the financial institution's name and logo;

  • • transactions covering the three-month period;

  • • that there are sufficient funds present in the account (the balance must always be at least £2,800 or £800, as appropriate).”

8

At paragraph 30 of his determination, the Immigration Judge wrote:–

“13. The Appellant has 2 accounts at Barclays Bank, the first a current account which has an overdraft limit of £1,500 and a reserve limit of £500. The appellant also has a nest-egg savings account with Barclays Bank. The appellant had in that savings account on the 15 August £13,000 and £12,000 was withdrawn by him and paid in to his current account which he subsequently withdrew in cash in order to make a loan to his uncle and the loan in cash was made to his uncle in September 2008 and there is an affidavit from the appellant's uncle, being document 35 in the appellant's bundle, confirming that loan was made to [the uncle].”

9

At paragraph 14, the Immigration Judge referred to judicial comments taken from a case he referred to as “ Obed and Others” (generally known as GOO and others [2008] EWCA Civ 747), in which it was said to be relevant to recall that the admission of foreign nationals to study helped to maintain English as the world's principal language of commerce, law and science and furnished a source of revenue, which was of importance to the United Kingdom's universities and colleges as well as to many independent schools. At paragraph 15, the Immigration Judge considered that although that statement had been made in relation to a student appeal “it could be argued that the whole purpose of this Immigration Rule is to allow the skills and knowledge acquired by an applicant to be used for employment and such skills would aid the economy”.

10

After those observations, the Immigration Judge turned at paragraph 16 to the analysis of the appellant's actual case. The Immigration Judge noted that in the application form the question at N1 was “Does the applicant have access to £800 available funds to support themselves?” (Immigration Judge's emphasis). The Immigration Judge then referred to the policy guidance and in particular the statement at paragraph 91 that “Applicants in the United Kingdom seeking further leave to remain must have at least £800 of personal savings” (Immigration Judge's emphasis).

11

It is common ground that, in the remainder of the determination, the Immigration Judge wrongly described the Policy Guidance as an Immigration Directorate Instructions (IDI). At paragraph 17, the Immigration Judge said that the IDIs “are silent as to what the meaning of ‘personal savings’ (sic) and equally the IDIs are silent about the existence of overdraft facilities...

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