Ok (Paragraph 245Z€)
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Gleeson |
| Judgment Date | 05 January 2010 |
| Neutral Citation | [2010] UKUT 166 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 January 2010 |
[2010] UKUT 166 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Eshun
SENIOR IMMIGRATION JUDGE Gleeson
For the Appellant: Mr E Wilford, Counsel instructed by Advisa Solicitors
For the Respondent: Ms Z Kiss, Home Office Presenting Officer
OK(paragraph 245Z(e) — transitional provisions — Maintenance (Funds)) Ukraine
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1. The Respondent's transitional provisions in relation to Maintenance (Funds) requirements, ending on 31 October 2008, are not to be confused or conflated with the transitional provisions for Attributes and English Language for those remaining on the IGS/SEGS/FT:WISS schemes after 30 June 2008.
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2. While an applicant may be entitled to the benefit of both transitional provisions where an application for Tier 1 (Post-Study Work) was made before 31 October 2008, applicants wishing to transfer from IGS/SEGS/FT:WISS to Tier 1 (Post-Study Work) whose applications were made after that date will need to meet the Maintenance (Funds) requirement in the normal way.
The appellant, a Ukrainian citizen, appeals against the determination of Immigration Judge Abebrese dismissing her appeal against the decision of the Respondent to refuse to vary her leave to remain in the United Kingdom to change her status from the International Graduates Scheme (IGS) to be a Tier 1 (Post-Study Work) Migrant pursuant to paragraph 245Z (e) of the Immigration Rules HC 395 (as amended).
The issue before the AIT was whether that decision was consistent with the transitional arrangements which the Respondent put in place with the introduction of the Points-Based System. The only point at issue was whether the appellant could meet the Maintenance (Funds) requirement as it appeared that she had not had personal savings at the level of £800 for the three month period preceding her application, in this case, between 12 November 2008 and 11 February 2009 (the funding period). The United Kingdom bank account showed that the appellant's account fell consistently below that minimum. A letter from her bankers in the Ukraine, Ykpcousahk Bank, was not supported by a letter from the financial institution governing the banks of Ukraine, and gave only the balance in her account on one date. It was not evidence that any particular level of funds was available throughout the three month period specified above.
The appellant also made a human rights claim. She had been in the United Kingdom for seven years, was in a serious relationship and lived with her boyfriend. She had ‘baptised a boy who is five years old’ but it was unclear whether this was her child. She was working, and was valued in the school where she taught. She considered that it would be difficult for her to adapt to life in the Ukraine on her return. The majority of her family members were still in the Ukraine. The Immigration Judge dismissed the appeal on immigration and human rights grounds.
The appellant challenged the Article 8 element of the determination as disproportionate, arguing that the Tribunal had failed properly to apply the judgment of the House of Lords in Huang [2007] UKHL 11 at paragraph 19.
She mounted a vigorous challenge to paragraph 245Z(e), complaining that no decision had been made on her request to cite a number of unreported determinations, and that it was an error of law for the Immigration Judge to consider that the post-study work transitional provisions were clear and unambiguous.
On 28 July 2009, SIJ Chalkley ordered reconsideration. He refused leave on Article 8 and on the unreported determinations questions but considered that ‘the judge may have materially erred in law by failing to consider and apply the applicable Transitional Arrangements’. The appeal came before a panel of two SIJs for full reconsideration on 5 January 2010, but although the panel agreed on its decision shortly after that, it was not possible to finalise the determination before the AIT ceased to exist on 15 February 2010. The appellant did not appear to give evidence and it was clear from difficulties during the hearing that her representatives did not have up-to-date instructions from her.
Pursuant to Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ( SI 2010/21):
“4. Where the reconsideration of an appeal by the Asylum and Immigration Tribunal under section 103A of the 2002 Act has commenced before 15 February 2010 but has not been determined, the reconsideration shall continue as an appeal to the Upper Tribunal under section 12 of the 2007 Act and section 13 of the 2007 Act shall apply.”
This appeal accordingly falls to be determined as an appeal before the Upper Tribunal. We have reminded ourselves that the standard of proof in immigration appeals is the ordinary civil standard of balance of probabilities.
The Tribunal has the benefit of the appellant's bundle of evidence which was before the original Immigration Judge. In a statement signed on 23 May 2009, the appellant stated that:
“8. I was quite upset to find out that my Tier 1 (Post-Study Work) application was refused. I have always followed all the requirements of the Home Office and because I was a participant of the International Guidance Scheme (IGS) I thought that the Transitional Arrangements would be applied and that I did not need to meet any points requirements or that I only had to demonstrate £800 in my account at the end of each month or on the date of my application. Besides my initial solicitor who assisted me with my application confirmed that my net income of £880 per month would be enough to qualify for the programme. Unfortunately that solicitor provided me with wrong advice and because I relied on that advice, my application was rejected.”
She goes on to refer to having lived in the United Kingdom for seven years and having ‘baptised a boy’ who was more than five and a half years old. If that is her own son, then the Maintenance (Funds) requirements should be higher by £533.
The appellant produced a copy of the Immigration Rules which at paragraph 245Z (e) state that the applicant must have a minimum of 10 points under paragraphs 1-2 of Appendix C. The appellant also produced Appendix C which stated that:
“Tier 1 Migrants
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”
That is absolutely clear. However, the Respondent's website commentary was in the following terms:
“Tier 1 (Post-Study Work) – IGS – transitional arrangement
If your leave to remain on the basis of IGS or SEGS expired before 30 th June 2008, you will not be eligible to apply for an extension under Points-Based System Tier 1 (Post-Study Work).
If you have valid leave to remain under IGS or SEGS on or after 30 th June 2008, you will be able to apply to extend your permission to stay in your existing category. You will not be required to meet the points requirement if you are applying under this transitional arrangement. You can apply under these Transitional Arrangements at any time from 30 th June 2008. If your application is successful you will receive an extra year from the date your visa is due to expire. You will need to use application form Tier 1 (Post-Study Work), which is available on the UK Border Agency website at:
http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/poststudy/
If your application is successful you will be granted further leave to remain, up to a combined total of two years in your existing category and the Post Study Work category, during which time you will be free to seek employment without having a sponsor.
Please note, you cannot make an application under these Transitional Arrangements if you are not in the United Kingdom.
You will be able to apply to switch in the United Kingdom from Tier 1 (Post-Study Work) to Tier 1 (General, Investor or Entrepreneur) or Work Permit employment (Tier 2 when implemented), or Student (Tier 4 when implemented) or Student (Tier 4 when implemented). However, please note, time spent in the United Kingdom in the Tier 1 (Post-Study Work) category does not count towards the qualifying period for Indefinite Leave to Remain.”
The appellant also relies on a chain of emails sent to and from Lisa Amin and the UKBA in relation to a different appellant, which (in date order, and so far as relevant) was as follows:
| 14 November 2008 : | Student asks for guidance to application for Tier 1 (Post-Study Work) as replacement for remaining year of IGS. The student explains that most of his money has been sent home and so he cannot show £800 in the United Kingdom for the entire three months before the application. The student asks whether it is necessary to do so. |
| 1 December 2008 | Urgent reminder as no response received |
| 3 December 2008 | UKBA responded: “Dear Sir/Madam Thank you for your enquiry. When applying for Tier 1 (Post-Study Work) or Tier 1 (Entrepreneur) from within the United Kingdom, applicants are required to submit documents showing they have had savings of at least £800 for at least three months before applying. If the balance has dipped below £800 during the three month period, the requirement will not be met. If they are including dependants in their application or applying separately for dependants, they will need to show additional savings of £533 for each dependant. … The types of... |
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Upper Tribunal (Immigration and asylum chamber), 2010-05-13, [2010] UKUT 166 (IAC) (OK (paragraph 245Z(e), transitional provisions, Maintenance (Funds)))
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