MM (Tier 1 PSW; Art 8; 'Private Life') Zimbabwe v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeGrubb,S J Hall
Judgment Date17 July 2009
Neutral Citation[2009] UKAIT 37
Date17 July 2009
CourtAsylum and Immigration Tribunal

[2009] UKAIT 37






Secretary of State for the Home Department


For the Appellant: Ms F Aslam, Duncan Moghal Solicitors.

For the Respondent: Mr C Howells, Home Office Presenting Officer

MM (Tier 1 PSW; Art 8; “private life”) Zimbabwe

1. Whilst respect for ‘private life’ in Art 8 does not include a right to work or study per se, social ties and relationships (depending upon their duration and richness) formed during periods of study or work are capable of constituting ‘private life’ for the purposes of Art 8.

2. In determining a Tier 1 (post-study) worker case where Art 8 is relied upon, the 5-stage approach in Razgar should be followed.

3. When determining the issue of proportionality in such cases, it will always be important to evaluate the extent of the individual's social ties and relationships in the UK. However, a student here on a temporary basis has no expectation of a right to remain in order to further these ties and relationships if the criteria of the points-based system are not met. Also, the character of an individual's ‘private life’ relied upon is ordinarily by its very nature of a type which can be formed elsewhere, albeit through different social ties, after the individual is removed from the UK. In that respect, ‘private life’ claims of this kind are likely to advance a less cogent basis for outweighing the public interest in proper and effective immigration control than are claims based upon ‘family life’ (or quasi-family life such as same-sex relationships) where the relationships are more likely to be unique and cannot be replicated once the individual leaves the UK.


The Appellant is a citizen of Zimbabwe who was born 17 April 1970. On 16 February 2009, the Respondent refused her application for an extension of leave to remain as a Tier 1 (Post-Study Work) Migrant under paragraph 245Z of Statement of Changes in Immigration Rules (HC 395). On 16 April 2009, a panel of the Tribunal (DIJ D N Bowen and IJ Y J Jones) dismissed her appeal. On 11 May 2009 SIJ McKee ordered reconsideration. Thus, the matter came before us.


The Appellant came to the United Kingdom on 24 April 2002 as a student. On 1 April 2004, the Appellant's husband and daughter, who was born on 17 September 1995, joined the Appellant in the UK as her dependents. The Appellant's daughter has been in school in the UK since 2003, when she was aged 8. She is now aged 13 and in secondary school. In August 2005, the Appellant's husband died.


Since arriving in 2002, the Appellant has been a student undertaking a number of courses with leave culminating in a BA (Hons) degree in Youth and Community Studies at the University of Wales, Newport between September 2005 and June 2008. She was awarded a 2.2 degree in December 2008.


During her time as a student and subsequently, the Appellant has undertaken both paid and voluntary work. Since 2006, the Appellant has been employed through the charitable organisation ‘Rethink’ as a Community Health Worker (CHW) for the Severnside Service in South Gloucestershire for 18.75 hours per week. She carries out voluntary work for the Bristol Youth Offending team and has been involved in the activities of her local church, St Matthews in Bristol. The Appellant wishes to continue her work as a CHW on a full-time basis if granted leave under the Tier 1 scheme.

Paragraph 245Z, HC 395

Prior to her leave expiring on 31 January 2009, the Appellant applied for further leave as a Tier 1 (Post-Study) Worker. The Respondent refused her application. That refusal was on the basis that a number of the requirements of para 245Z were not met but, before the Panel, the Respondent relied only upon para 245Z(e) namely that:

“The applicant must have a minimum of 10 points under Appendix C.”


Those 10 points were necessary for her to succeed under the Points Based System (PBS). Appendix C deals with the ‘maintenance’ element. Appendix C provides so far as relevant:

“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.”


Paragraph 2 of Appendix C, in turn, specifies the amount as £800. The UK Border Agency's Guidance, Tier 1 (Post-Study Work) of the Points Based System – Policy Guidance (in the version applicable to this appeal) specifies that the £800 of personal (cash) savings must be held by the individual for a three month period prior to the date of application. The Guidance further specifies (at para 96) the documents which are required to establish this; including a letter or bank statements from a UK bank or a letter from a financial institution regulated by the FSA or, in the case of an overseas account, a letter from the official regulator of that country confirming the funds held in the applicant's account. All documents must be originals and not copies (para 93). The documents (or in the case of UK bank statements the most recent) must be dated no more than one calendar month before the application.


Before the Panel, the Appellant relied upon sums of money held in three UK bank accounts over the relevant period of 2 October 2008 to 2 January 2009 (when the application was made) showing a combined balance of £454.32. That obviously was not sufficient to meet the Rules and Guidance. In addition, she relied upon a letter dated 16 March 2009 from the FBC Bank Ltd in Zimbabwe which stated that as at that date the balance of an account in the Appellant's name was US $300. Finally, she relied upon a letter dated 19 March 2009 from the Great Zimbabwe Realtors that they were in possession of US $750 between 30 September 2008 and 31 January 2009 which they held for the Appellant being rent collected by them in respect of a property owned by the Appellant. Taken together the Appellant claimed she had at least £800 available to her as required.


The Panel concluded that the Appellant's documentation did not comply with the Guidance. At para 21, the Panel said this:

“…we cannot accept the letters from the FBC Bank Limited and GZR as acceptable evidence of the amount held by the appellant in Zimbabwe as they were submitted after the application. The evidence from GZR did not come from a personal bank or building society statement and the evidence from FBC Bank Limited showed a balance on a particular day after the requisite period and did not show that the appellant held enough funds for the requisite period. We therefore find that the appellant did not satisfy the maintenance requirement to allow her to remain in the UK as a Tier 1 (Post Study Work) Migrant.”


Before us, Mr Howells on behalf of the Respondent submitted that the Panel's approach to the documentary evidence was entirely in line with the Tribunal recent decision of NA & Others (Tier 1 Post-Study work-funds) [2009] UKAIT 00025. There was no material error of law in the Panel's decision. Ms Aslam, for the Appellant, informed us that she was instructed to pursue the reconsideration on this issue but then made no specific submissions to us.


In our judgment, the Panel's decision was inevitable and correct. In relation to the letter from FBC Bank Limited we entirely agree with the Panel that this document did not in any way assist the Appellant. It merely states that the Appellant's account at that bank had US $300 in it on 16 March 2009. It says nothing about what, if any, of these funds were available to her over the relevant three month period prior to her application in January 2009 as required by the UK Border Agency's Guidance.


By contrast, as the Panel accepted, the letter from Great Zimbabwe Realtors dated 19 March 2009 did show that she had US $750 available over the relevant period. However, they placed no reliance upon it, inter alia, because it post-dated the application. With respect that is not correct. As the Tribunal pointed out in NA (at [66]–[67]), the effect of s.85(4) of the Nationality, Immigration and Asylum Act 2002 is that the Tribunal may take into account evidence on appeal that was not submitted with the application (or indeed which post-dates it) providing that the evidence relates to the funds available during the three month period prior to the application. That is precisely what this letter did. The Panel was, nevertheless, correct not to take the document into account because it does not fall within the documentation required by the Guidance. It relates to an “overseas account” (albeit not a personal bank account) and there is no letter from the “home regulator” in Zimbabwe confirming the funds as required by para 96(iv) of the Guidance. The Guidance is mandatory and only the specified documents will suffice to prove the requisite funds were held by the Appellant ( NA at [47] and [51]).


Consequently, for reasons which differ only slightly from those of the Panel, we agree that the two documents relied upon by the Appellant did not fall within the Guidance and thus the Panel were right to conclude that the Appellant had failed to show that she had £800 available to her in the three months prior to her application. For these reasons, the Panel's decision to dismiss the appeal in respect of para 245Z discloses no material error of law and must stand.


At the conclusion of the case Mr Howells pointed out that the appeal before the Panel had proceeded on a false premise. Because the Appellant had a dependent child, the amount of cash funds which she had to have available was not £800 (as had been the common ground between the parties) but, in fact, £1333 to reflect an additional element of £533 for each dependant). He referred us to the UK...

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