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New PBS decision: not good news


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No time for a proper post on this new case from the tribunal, NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025, so I’ll just paste in the headnote, which speaks for itself:

i. 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.

ii. 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.

iii. 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.

iv. 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.

v. 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.

vi. 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.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


25 Responses

  1. You know, I am thoroughly disappointed by this ruling.
    I know now that the “law” overrides all common sense – What is to be gained from sending an applicant home even though the he/she has fulfilled all righteousness by the date of appeal?

    I thoroughly disagree about the so-called “transitional arrangements” – apparently we were given fair warning? I call BS on that. We are told to check visas at least a month before expiry – and all of a sudden you realize that you had to have had £800 for three months? By then you begin bricking it as you realize that it is too late? Is that fair warning? Where did the figure of £800 come from anyway?

    And may I just add – up until the 19th of May 2009, the UKBA were sending automated replies saying former IGS holders did not need to meet the points requirement to get the PSW extension. What is the stance of the Home Office on this? You can’t say one thing and then another – what is the law on IGS transitional applicants??? Does it make sense to DELETE a visa, then introduce one that is the same in principle except that it is two-years instead – then IMPOSE new requirements on applicants that still reside in the United Kingdom? Is this justice? I am sick of the laissez faire attitude of the judges – so an excellent immigration record counts for nothing? Is this how you reward people who have invested so much in the United Kingdom?

    How did the Scottish PHD holder Swarthick Salins get out of the maintenance requirement? Could it be that to get a visa you have to whine and cry to an MP and the press so the ridiculousness of this rule can be seen?

    1. Homecoming, PSW was launched on 30 June 2008, and the transitional arrangments were in place for 4 months until 31 October 2008. I am not sure by whom you were told “told to check visas at least a month before expiry” but note that they said “at least”, not “at most” or just “a month before”. Current IGS participants were free to switch into PSW whenever they wished from 30 June 2008, even if their IGS leave was only days old. In my experience many IGS holders did switch before 31 October, in order to take advantage of the transitional arrangements for maintenance.

      Re: Salins, my understanding is that he simply re-applied, this time with all the requirement maintenance. It would have been a late application, but the PSW rules are drafted to allow for this (albeit with all the risks attached to a late application re: appeal rights, lack of 3C leave and very likely 28+ day overstay).

    2. I thought most guidance in Home Office forms are along the lines of “do not bother us until at least 4 weeks prior to the expiry of your visa.” The Home Office should have done a hell of a lot more work with the universities. In my experience foreign students are only reliant on university staff who are nearly always as bewildered as those who they are advising. Rules change without notice, the latest being post graduate diplomas not qualifying for the post study work visa. That caught a lot of people out.

    3. In my experience foreign students are only reliant on university staff who are nearly always as bewildered as those who they are advising

      As someone who works in the HE sector, I can say that we aren’t complacent when it comes to advising students.

      However, lately we’ve been receiving bizarre calls from various parts of the Home Office for advice on how to interpret their rules for Tier 4!

    4. No offence at all meant, or intended, to all those hard working and conscientious international student advisers who do their damndest to keep abreast with the amendments to the rules.

      Doesn’t suprise me at all that the Home Office is seeking advice from the universities and FE colleges- LOL

    5. It is a bit unfortunate that some universities have better international student services than others. I can’t count how many applicants who had failed applications because they had not received their certificates yet and the letters issued to them by he universities for the Home Office were not “up to scratch.” It causes needless stress on the applicants side – and in the eyes of the Home Office the onus is on the person applying – never mind the University error. But then again – I have heard of one refusal where everything was in order – and the application was still refused. I actually found a copy of my old IGS form. It was 2-3 pages? PSW form – 40 odd pages or is it over 50 now? Obviously it would now be impossible for an international student adviser to go over every single application now the forms are now of such volume. Why did it have to get so complicated – policy makers/writers/form builders/UKBA take note!

  2. The bottom line, maintenance fund will be increased dramatically to cover other living costs. I think this is not the way to know whether the applicant is currently capable of supporting himself and without accessing public funds. The best way do it is to look at his immigration history and know how he managed to live, and whether he broke any immigration rules in the past. Banks need more and more money… Recessions can override any common-sense sometimes.

    1. If the reason for your ruefulness is what I think it is, get in touch. Paragraph 10 of the decision is probably wrong. The 2007 forms regulations seem still to be in force as no-one can find the specific revocation. Not sure if this affects the outcome, but it could be a useful start of an appeal point.

  3. I totally agree with the above posts. This whole £800 maintenance thing is a farce, and some judges have been turning a blind eye when approving appeals, whilst others enforce it to the letter.

    I think a sensible requirement could be £20,000 salary + £800 savings over 3 months, OR £30,000 salary and no need to prove savings, as I think someone on £30k surely does not need to depend on public funds or is broke.

    1. What I have a problem with is having to show £800 every single day in three months. That is the problem. I guess it would be too much work to look at in-goings and outgoings of an account – like it used to be. Or an average over three months.

    2. This is a post-study work visa we are talking…i.e. the visa after having been on a student one…it would be impossible for a student to have been earning £20k-£30k with the 20 hr per week work limit. The 800 is fine.

  4. The £800 requirement is a joke, no-one has been able to explain to me where the figure came from, or the £533 requirment for dependents.

    KA solved a lot of problems with immigration appeals clarifying the situation set out in earlier decisions and whilst the levels of income set out in it are not perfect (being below the poverty line)it is a clear measure as to what is adequate.

    Why exactly the test in KA has not been used is beyond me as it would make everyones life a lot easier.

    1. A sensible balance between the stupid ‘benefits level’ finding of KA, the the entirely random 800 quid PBS requirements would be a good idea.

      What is the 800 level based on ? God knows, I cant help but thinking that the policy boffins cut cards or rolled dice to come up with that one, perplexing both to hard working civil servant HOPO’s and “Immigration Lawyers” alike.


    2. It is quite strange. The new student visa rules have a maintenance requirement for students within London to have £800 over nine months as maintenance – students outside London have to show £600 in contrast. I believe the figures were obtained from the British Council?(This seemed to be what they believed was “adequate” funds to live in the United Kingdom). Maybe that’s where the figure of £800 comes from.

    3. Why do you consider the finding in KA to be stupid, most IJs, HOPOs and Representatives seem to agree that it makes things a lot easier.

    4. Ageing HOPO,

      No no, I agree that KA made life a lot easier, especially in some of the more moronic ECO decisions, where one can give a nod and a wink to the Adjudicator that the dead horse will not be flogged on that limb.

      The objection I have is that setting the bench mark at the benefits level / poverty line is entirely inappropriate.


      Thanks for the info, it is starting to make a bit more sense now, in as far as the rationale by which the 800 level was decided. That said, I don’t think the UK should have such a draconian / arbitrary approach to those who have entered legally and played by the rules.


    5. I like KA – benefits level is a suitable minimum income level that has some objective justification and it also prevents inquiry into impecuniousness. Some applicants might claim that they can get by on very little and others who have lots of income might gamble it away. I like the focus on income rather than needs.

  5. Vaste swaithes of the PBS are a policy hatchet job from start to finnish. It’s hellish to conduct reasonable litigation within these bizzare and fuzzy parameters. Largely conducted at the tax payers expense I might add. Proportionate to the needs of immigration control in a democratic society? I think not.

  6. It does not really change much, does it?

    The immigration Rule 245 Z (e) and Appendix C, requires that an applicant has funds at his disposal at the time of the application – according to AM (ethopia), the meaning of immigration rules is worn on its sleave.

    Thus, there is no room for discretion. But a literal interpretation of the rule should allow for an overdraft facility to be considered, as funds at the applicant’s disposal. Would that work?

    Also, is a distinction to be had between a regular PSW visas and a transitional arrangement, IGS to PSW. S.85(4) limits the admissibility of evidence for entry clearance cases, but how about applicants on transitional arrangements, can an argument be made that this a variation of leave?

  7. Why did it have to get so complicated – policy makers/writers/form builders/UKBA take note!
    The whole sector is pretty hacked off about the whole 50 pages of form, 50 pages of applicants guidance, 200 pages of sponsor guidance for Tier 4.
    For applicants who speak English as a second language, the impenetrable wording of the forms should certainly reassure anyone of a migrants linguistic ability.
    After much jumping up and down by Universities UK and UKCISA, I’m aware that there is now a consultation underway with the HE/FE sector regarding both the forms and guidance for tier 4 applications. Hopefully something will come of the consultation and any improvements will filter across PBS.
    It’s interesting to see that the much championed PBS systems in Canada and Australia don’t extend to students at all.

  8. Have you ever seen this happen? I’m an American woman who needed an extra few months to complete my degree last year (due to illness and surgery), so I filed (May 2009) for an extension of my Residence Permit with limited leave to remain so I could “complete my dissertation.” The amount of my savings exceeded the £1200 required and I included 2 bank statements in the application pack. A UKBA officer apparently missed one, as he refused my application based on only having “£800.” In Feb. 2010, an AIT judge allowed my appeal, as she clearly saw the error. The UKBA has not acted yet, almost 3 months later. I received my degree in Oct. 2009 and now only have 5 months left to apply for the Tier One Post-Study Visa. In your experience, how long might the UKBA take to correct this injustice?? My attorney has seen it take as long as a year. Not only could my next visa be in danger, I have not been able to fly back to the USA to see my family in all this time due to the law about travelling during and after an appeal. This is driving me mad. What a way to treat an NHS midwife!