SK (Tier 1 – Transitional provision – maintenance)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Batiste |
| Judgment Date | 08 June 2009 |
| Neutral Citation | [2009] UKAIT 32 |
| Court | Asylum and Immigration Tribunal |
| Date | 08 June 2009 |
[2009] UKAIT 32
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Batiste
For the Appellant: Ms V Laughton, instructed by Messrs Penningtons
For the Respondent: Ms J Isherwood, Presenting Officer
SK (Tier 1 — Transitional provision — maintenance) Republic of Korea
The transitional provision concerning maintenance under Tier 1 (Post Study Work), for those with previous leave under the International Graduates Scheme, only applies to applications made on or before 31 October 2008. It has not been extended and there is no legitimate expectation that it should have been.
The Appellant is a citizen of South Korea who has obtained an order for reconsideration of the determination of Immigration Judge Scott-Baker, who on the papers dismissed the Appellant's appeal against the decision of the Respondent on 19 December 2008 to refuse to vary her leave to remain in United Kingdom.
The Appellant has been in the UK since September 2003. She had leave as a student until on 5 December 2007, when she was granted leave to remain under the International Graduates Scheme (“IGS”). The IGS and other similar schemes were replaced by a new points based scheme for Tier 1 (Post Study Work), which came into force on 30 June 2008. The provisions of the new scheme are contained in paragraphs 245V, 245Z and 245ZA of the Statement of Changes in the Immigration Rules (HC395 as amended). Paragraph 245Z(e) requires a sufficiency of funds as specified in Appendix C of the Rules. Transitional arrangements for those who were already here on the discontinued schemes such as the IGS (as opposed to initial applicants) are set out in various policy guidance documents issued by the Respondent. One such transitional arrangement relates to sufficiency of funds (generally referred to as “maintenance”).
The Immigration Judge concluded that the Appellant did not fall within the terms of the transitional arrangements relating to maintenance, and did not meet the new maintenance requirements under the points based system either. Therefore on this basis she dismissed the appeal.
The Appellant's grounds for reconsideration, as argued before me by Ms Laughton, assert first that the Judge was in material error of law in concluding that the transitional arrangements on maintenance did not apply to the Appellant. Ms Laughton maintained that the transitional arrangements applied to those who were in the UK and whose last grant of leave was under the IGS and was due to expire after 30 June 2008. The Appellant fulfilled these requirements as her last leave to remain was granted under the IGS and was valid until 2 December 2008. Moreover she met all the substantive requirements of the transitional provisions, including, for the purpose of this hearing, the requirement in respect of maintenance, which demanded a single bank statement with a closing balance of not less than £800 at any time in the 30 days prior to the presentation of the application. Because she was eligible for the transitional arrangements on maintenance, she did not have to meet the normal maintenance requirement under the new scheme which would require her to have had a minimum balance of £800 throughout the three months prior to the presentation of her application, which would be the position outside the transitional arrangements. Alternatively Ms Laughton argued that the Appellant had a legitimate expectation that she would be entitled to the benefit of the transitional arrangements for maintenance. As a further alternative, Ms Laughton argued that the Respondent's decision would be in breach of the Appellant's Article 8 rights.
Before me, both Representatives agreed that the closing balance in the last bank statement of the Appellant prior to her making her application to the Respondent on 27 November 2008 was £994.45. This was the closing balance in a statement dated 13 November 2008. Both Representatives agreed further that if the transitional arrangements did apply to the Appellant then she had discharged her burden of proof with regard to maintenance and her appeal should be allowed as there was no other issue arising.
Ms Isherwood accepted that the Appellant was entitled to the benefit of transitional arrangements relating to the closure of the IGS. She had benefited from them by being able to make her application under Tier 1, without the need to satisfy the new requirements in respect of attributes and command of English, as set out in Appendices A and B of the Rules. However, Ms Isherwood maintained that the transitional arrangement for maintenance under the new points based system was separate and distinct and was expressly available only to those who had submitted their applications within the United Kingdom up to and including 31 October 2008.
Ms Laughton helpfully provided a skeleton argument and produced in her bundle of documents a guidance note from UKBA at page 34, and five e-mails (pages 26–29) from December 2008 to February 2008 between enquirers and the UKBA concerning the transitional arrangements. She maintained that these e-mails supported her submissions that the transitional arrangement relating to maintenance had continued beyond 31 October 2008 or alternatively that the Respondent had created by these documents a legitimate expectation that they would.
The Guidance Note to which she referred is from IND and was dated 2 June 2009. It stated:
“If you have a valid leave to remain under IGS or SEGS [Science and Engineering Graduates Scheme] … on or after 30 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 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) …”
With regard to the e-mails, Ms Laughton in her oral submissions seemed to imply that some are specific responses to others. However I should observe at this point that I do not consider this is so. They are arranged in reverse date order. The names of the enquirers have been blanked out and cannot therefore be matched. However, if one looks at the dates of the respective e-mails and their contents, none of the five appear to relate directly to any other. They are in effect a collage of separate enquiries and responses. Ms Laughton referred me to the two e-mails on page 28 of her bundle which refer expressly to maintenance. As it is not alleged that the Appellant was herself the enquirer in question in any these e-mails, I have treated them all as being Representative of the type of correspondence being generated at the time. The first e-mail on page 28 is from an enquirer as follows:-
“4 December 2008
Thanks a lot for your response. My case falls in below the category “Tier 1 (Post Study Work) – IGS — Transitional Arrangement”. And as per automated response, there are no points requirements to be met, which means not even for maintenance requirement. Am I correct in understanding this?
“Tier 1 (Posed Study Work) — IGS – Transitional Arrangement
If your leave to remain on the basis of IGS or SEGS expires before 30 June 2008, you will not be eligible for an extension under Points Based System Tier 1 (Post Study Work).
If you have valid leave to remain under IGS on or after 30 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 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 (Posed Study Work), which is available on the UK Border Agency website at www.ukba.homeoffice.gov.uk/workingintheuk/tier1/poststudy””
The IND e-mail is a reply on this issue albeit to someone else who would seem to have raised a similar question. It states as follows:
“3 December 2008
Thank you for your inquiry.
When applying for Tier 1 (Post Study Work) or Tier 1 (Entrepreneur) from within United Kingdom, applicants are required to submit documents showing they have had statement of at least £800 for at least three months before applying. If the balance has dipped below £800 during the three-month period the maintenance requirement will not be met.”
Ms Laughton submitted that the reference to “ not being required to meet the points requirement” in the automated response cited in these e-mails (which were dated in December 2008) included maintenance and demonstrated that whatever the position might have been previously, transitional arrangements had been extended beyond 31 October 2008 to cover anybody who had extant leave under the IGS expiring after 30 June 2008. Obviously an application for extension would have to be made during the currency of the extant leave. In the alternative, she submitted...
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Ok (Paragraph 245Z€)
...that the facts in this appeal were ‘extremely similar’ to those in SK (Tier 1 – transitional provision – maintenance) Republic of Korea [2009] UKAIT 00032, in which the AIT had held that the Transitional Arrangements applied only to applications made on or before 31 October 2008, but that t......
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Upper Tribunal (Immigration and asylum chamber), 2009-08-13, [2009] UKAIT 32 (SK (Tier 1, Transitional provision, maintenance))
...ar-SA } a:link { color: #0000ff } Asylum and Immigration Tribunal SK (Tier 1 – Transitional provision – maintenance) Republic of Korea [2009] UKAIT 00032 THE IMMIGRATION ACTS Heard at Procession House On 8 June 2009 Before Senior Immigration Judge Batiste Between SK Appellant and THE SECRET......
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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)))
...that the facts in this appeal were ’extremely similar’ to those in SK (Tier 1 – transitional provision – maintenance) Republic of Korea [2009] UKAIT 00032, in which the AIT had held that the Transitional Arrangements applied only to applications made on or before 31 October 2008, but that t......