Upper Tribunal (Immigration and asylum chamber), 2009-07-02, [2009] UKAIT 25 (NA and Others (Tier 1 Post-Study Work, funds))
| Jurisdiction | UK Non-devolved |
| Judge | Mr J Perkins, Dr HH Storey |
| Status | Reported |
| Date | 02 July 2009 |
| Published date | 03 July 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 24 April 2009 |
| Subject Matter | Tier 1 Post-Study Work, funds |
| Appeal Number | [2009] UKAIT 25 |
Asylum and Immigration Tribunal
NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025
THE IMMIGRATION ACTS
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Heard on 24 April 2009 |
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at Taylor House |
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Before
Senior Immigration Judge Storey
Senior Immigration Judge Perkins
Between
Na (1st appellant)
cO (2nd appellant)
mM (3rd appellant)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the appellants: Ms J Heybrook instructed by Kothala & Co (for NA), Mr E Nicholson instructed by Hammonds LLP (for CO), Miss L Cole-Wilson instructed by Suriya & Co (for MM)
For the respondent: Mr E Tufan, Home Office Presenting Officer
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The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.
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The effect of para 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post-Study) Work, is that, to qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.
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This requirement, however, is relaxed for those who applied before 1 November 2008. Under transitional provisions they were only required to provide a bank statement showing a closing balance of £800 or over bearing a date anywhere within the period of one month immediately preceding the date of application.
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The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.
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Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.
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However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.
DETERMINATION AND REASONS
1. This determination is a reconsideration of the cases of three persons each of whom had brought an appeal against a decision by the respondent refusing to grant further leave to remain under the Tier 1 (Post-Study Work) scheme as contained in paras 245V, 245Z and 245ZA of the Statement of Changes in the Immigration Rules HC 395 as amended. With the agreement of the parties all three were heard together. Their appeals all turn on the issue of whether each was able to meet the requirement set out in para 245Z(e) that they had sufficient funds as specified in Appendix C to the Rules, entitled “Maintenance (funds)”. In all three appeals the appellants had met all other requirements of the Immigration Rules, those concerned with “Attributes” (Table 9 in Appendix A) and “English Language” (Appendix B) in particular.
2. Even though only raising, therefore, a limited number of issues affecting the Tier 1 (Post-Study Work) scheme, the relative novelty of the scheme, and indeed of the entire Points-Based System which now forms part of the Rules, calls for a brief resume.
3. The Tier 1 (Post-Study Work) scheme forms part of a new Points-Based System (PBS) consisting of five “tiers”. At the launch of the new system in 2006 the Home Secretary said the PBS would revolutionise the way in which migration into the UK would work (A Points-Based System: Making Migration Work for Britain (CM 6741)). In a statement of intent published in December 2007, the new system was described as the biggest shake up of the immigration system in its history (Highly Skilled migrants under the points system: Statement of Intent, BIA, Dec/07; see Macdonald’s Immigration Law & Practice, First Supplement to Seventh Edition, 2009, 10.6). Tier 1 is described by the UKBA as being for highly skilled individuals seeking employment or to set up in business; Tier 2 replaces the work permit scheme and most of the other categories of Part 5 of the Immigration Rules, with a system whereby employers in areas where there are gaps in the UK labour force can apply for sponsorship licences; Tier 3, which is not yet in force (and according to D.Jackson et al, Immigration Law and Practice, 4th edition, 2008, ch.10 “may never be implemented”) is for unskilled workers to fill specific labour shortages; Tier 4, in force since 31 March 2009 (by HC 314), is for students; and Tier 5 caters for youth mobility (replacing the previous provision for working holidaymakers) and for temporary workers, i.e. those coming to the UK primarily for non-economic objectives. The Points Based System is seen as integral to achieving the goal of “Managed Migration”.
4. Tier 1 (Post-Study Work) is one of four Tier 1 subcategories, the others being “general” (the replacement for HSMP), “entrepreneur” and “investor”. It represents a new avenue for further stay for students from overseas. Under the Rules relating to students their entry and stay depends on their continuing to be students and only working with the permission of the Secretary of State and for no more than 20 hours a week. In general they are not permitted to switch from student status to any employment or business category, albeit (prior to 31 March 2009 when Tier 4 came into operation) limited exceptions were made under the Training and Work Experience Scheme (TWES) scheme and the Home Office was prepared very occasionally to grant such persons leave as a work permit holder outside the Rules. In any event, the basis of the new Tier 2 scheme, like the work permit scheme it replaced, is to enable employers based in the UK to employ people in certain limited circumstances; it does not confer a right for an applicant to look for work without having a licence to work for a specific employer in a specific approved employment. Under the Tier 1 (Post-Study Work) scheme, however, although it is intended to provide a bridge to highly skilled or skilled work, it is possible for successful applicants who have been students to stay on for two years and find any work of their choice. As the current Tier 1 (Post-Study Work) of the Points Based System - Policy Guidance (hereafter “Policy Guidance”) states, “[p]ost-study workers are free to look for work without having a sponsor for the length of their leave”. They are also able to work as self-employed businesspeople. The Policy Guidance and related UKBA statements on the scheme present it as primarily intended to allow the UK “to retain the most able international graduates who have studied in the United Kingdom.” That reflects the fact that it is a replacement for the International Graduate Scheme (IGS) (and its predecessor Science and Engineering Graduates Scheme (SEGS) and the Fresh Talent: Working in Scotland Scheme (FT:WISS). It is stated that although the scheme is only issued for two years, it does allow transfer to a different visa for skilled migrants within Tier 1 or alternatively Tier 2 if they are able to secure a sponsor. Yet its terms currently enable in-country applicants at least to meet the academic requirements, purely on the strength of having obtained a degree in the UK in the 12 months prior to the application (up until 31 March 2009 a post-graduate diploma could suffice). We are concerned in this reconsideration with three appellants who made in-country applications, but the scheme also allows for applications for entry clearance, albeit with some modifications in the relevant requirements, one being that £2,800, not £800 is specified as the required level of funds.
5. Apart from reflecting changes in government policy towards different immigration/migration categories, the PBS, modelled loosely on the Australian system, also embodies certain features identified in the government’s ongoing “Simplification Project”, which seeks to simplify not only...
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