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Points Based System in trouble

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There are reports that the Home Office just conceded a judicial review against the maintenance requirements under the Points Based System (PBS). This could be a very important development, and more posts (or comments, below) will follow as details become available.

The challenge appears to have been based on the argument that very strict, pedantic maintenance requirements of the PBS bear little or no relation to the avowed purpose of those requirements. The purpose is to make sure successful applicants have enough money to look after themselves and their dependants and not to become a burden on public funds. An applicant has to show a certain bank balance using certain very specific documents, which some banks are proving unwilling to supply, for a period of three months. The application is rejected if the balance falls below the specified amount for any length of time and by any amount during the three month period – even £1 below for 1 day is enough to trigger refusal. However, even people with very substantial income and with no history or future danger of having recourse to public funds may not be able to meet the rigid requirements, whereas even the profoundly impecunious can borrow the necessary amount for the necessary amount of time.

The Home Office not only conceded the case but also arranged for the challenger to be readmitted to the UK and paid their costs. It was a Tier 1 case but the same principles apply to other tiers.

This could well herald the end of the current daft approach to maintenance that is causing so many silly refusals at the moment. For those with current appeals based on a maintenance refusal, they have a very strong argument that their refusal was not in accordance with the law in the general sense. See the page on finding a lawyer for advice on that subject.

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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.
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Comments

46 responses

    2. Hi Jonathan
      Would you be able to provide some additional info on it please. I have an appeal in the AIT court for which I am preparing the witness statement at the moment(need to send it by Saturday). Case ID or any other relevant info will prove very helpful as I can then refer to it in my statement.

      CHeers
      Manuj

    3. Sorry to be so tantalising; it wasn’t my case and so I don’t have the full story. Such is lunchtime gossip. I’ll ask petitioner’s counsel for more information, but I understand the issue was that the £800 bank balance requirement was applied although the application had been submitted before this requirement was published: if so it may only be to do with the transitional provisions.

    4. There are stacks of people complaining over at the online immigration boards about the very same issue. Hopefully it will bring some sensible resolution to the issue.

  2. Would you be able to provide the specific case that you refer to? Thanks.

    1. It’s not reported. A case note will be circulated in the next ILPA mailing to members, apparently.

    2. Did it actually reach the Court of Session or was it settled before it reached that stage?

    3. The case I’m referring to is an English case, different to the Salins case in Scotland. I wasn’t aware of Salins when I wrote the post.

  3. This is excellent news. I am currently awaiting a determination on a reconsideration where my argument was precisely on this point – a purposive approach to the Rules, (coupled with s.85(4) of the 2002 Act.) As yet I haven’t received it so it will be interesting to see where it goes.

    1. B.B.

      Are you the same person as the B.B. on the Telegraph blogging site on immigration?

      Thanks.

    4. BB, I’d be careful about a ‘purposive approach’ argument given what the Court of Appeal has done to that argument in cases like AM (Ethiopia) & Ors v Entry Clearance Officer [2008] EWCA Civ 1082. The section 85(4) argument is good, though, I think, and is certainly working with some immigration judges. There’s no consistency though, and the outcome of any given appeal is really quite random at the moment. Some judges take a very liberal approach, others very much not.

  4. I am currently on the victims of this silly rule. My visa ends by the end May 31 and I never met this £800 thing. In fact I live on less than this amount of money anyway. I booked to leave the UK and apply from outside once I fulfill the requirements from outside the UK. I have been in pain over the years and money I have spent and at the end I am out the system. I have changed my plane ticket 3 times. Hoping to find a solution over this unnecessary rule. In fact it does not tell or even guarantee even if I satisfied the requirement will never suffer hardship anyway. Total ignorance in my opinion. I have not applied yet and I am still in the UK… not sure what to do! You think this will encourage me to apply even if I am going to get rejected now!

  5. You won’t be surprised to know that once again HOPO’s are being treated like mushrooms.

    Don’t expect us to be able to help you as no one is letting us know what is happening at JR level

    All we will be saying is that the rules as worded do not provide for any discretion, those higher up in the ukba might be granting leave outside the rules but this does not give IJs the power to do the same.

    S83(4) is a route to try but ultimately it has to be read in line with the rules and the stumbling block is that specific 3 month period where £800 must be had.

    Where the £800 and £533 figures came from no one is able to explain, it is rather strange when we have a ready made measurement for maintenance in KA

  7. Any particular website where I can search for case ref no SE and CJ v. SSHD CO/2093/09. I tried Bailii.org but couldnt find anything

    Cheers

    1. The Home Office conceded before it got to court, so there is no judgment. ILPA members will be getting a case note in the next monthly ILPA mailing, though.

    2. Let me first start by saying thankyou to everyone who has shared info in this matter. It really is appreciated a lot.

      Now to the questions

      As the case was conceded before it went to court, I am assuming that
      1) I cant really refer to it in my hearing
      2) There is a possibility that a Judicial review may not really take place as there will be no legal obligation for home office to do it now.

      Am I right in my assumptions above?

    3. I don’t see that there is anything stopping you referring to it and citing the case reference. Anyone can try running a similar argument themselves, if it applies to their situation, and backing it up by saying that the Home Office have conceded on the same point in another case. The ground of appeal on which that argument relies is ‘not otherwise in accordance with the law’, ‘the law’ being a very wide concept that includes not acting unlawfully. The other main argument lawyers are using is based on s.85(4) of the Nationality, Immigration and Asylum Act 2002, to say that even if the conditions weren’t met at the time the Home Office considered the case, they are met now, at the time of the appeal. This assumes that the person DOES meet the conditions at the time of the appeal hearing, of course.

  8. There are countless victims of this maintenance rule – myself being included. I was rejected for a shortage of little under £15 pounds. I was also on the now defunct IGS scheme… and the Home Office announced some imaginary “transitional” arrangements for people like me. Somehow they declined to mention that we dwould now need to meet a maintenance requirement(Which didn’t exist in the IGS scheme)and to add insult to injury(As I had effectively now paid £795 for a two year visa) I also got refused. I am representing myself and considered arguing the 85(4) section of the immigraton rules(having since met the requirement). The problem is – they insist on the three months having been met at the time of application. The honourable thing to do would be to change the ridiculous rule at once. But as usual the Home Office will have to be dragged kicking and screaming before that will happen. I looked on in amazement at what the HSMP Forum had to do for the Home Office to make provisions for them. Here’s hoping it gets changed by say….2010?

    1. I agree that there are countless people who are turned away due to the Tier 1 rules. I myself face a reconsideration hearing due to the home office being oblivious to evidence i submitted. While I failed to get the points due to maintenace section at the time of application and since graduation i had been earning about £1000 a month. I really cant see how the home office can compare £800 in savings to a fixed job with a good salary. In hindsight i would have taken a loan for £800 from my bank and transferred the money to an online saving account-and only produced this as maintenance evidence. The system is very flawed as this MUST be the way some overcome the requirement-legitimate applicants or not. For someone who has lived here for 11 years and has been cohabiting and supporting a british citizen for 5 years-the home office can do better. A good example i heard was a person who graduated last year and got a job straight off with a major oil and gas company. This individual spent close to £500 relocating and a month later applied for a Tier 1 visa. It was rejected due to the fact she had not had enough money in an account. How is this right seeing as the pupose of the point system is to keep the most able graduates. Given the length of a multinational companys graduate program the visa should also be extended to 3/4 years.

    2. Funny you should mention about the visa being at least three years. I just got off the phone with a friend who graduated from a reputed university. She mentioned to me that graduate recruiters at fairs are reluctant to employ graduates on PSW… Some excuses include: The graduate program duration is 3 years…and my favourite: We don’t “sponsor” international graduates. It was actually nearly impossible to get a job while I was under the IGS scheme… The Home Office have obviously turned this to a money making venture, with no education of employers on who they can employ…then again British jobs for British workers, innit? Disgraceful.

    3. This is very true, I graduated last year with a very high grade and a year in industry-and still its hard to find work. I think all large companies no matter how open they are to the prospect of taking international students on, just dont want to invest in an individual who can only stay legally for 2 years. I might add that I know a few who lied about visa status and 3/4 years on still work for the company-handling their visas themselves and not relying on HR or sponsorship. A lot of the time its better for graduates to just do contract work instead. As for my hearing-imstill not clear what it will involve-I am assuming the Article 8 clause of ECHR used by he first judge will stand, but am sure the HO will oppose this. Funny thing is i also would qualify under at least 2 other visa categories, but went for Tier system as it seemed to be designed to help people like me out. Im not very sure what immigration of human rights law i can quote or use as argument. Not sure how to use 85(4) either…. As for the british jobs for british workers-shouldnt it be british jobs for EU workers? as the only people who get a raw deal seem to be those from outside the EU.

  9. I have been following this and it seems no new thing is been said about it. people are continually being refused for maintenance and appeals are still being lost. Who will come to the rescue of immigrants who are told to live this country with their families and go back to their country in the middle of a recession, when there is no guarantee of getting another job in their home countries. How will they take care of their families when there is no job. Already immigrants are losing their health because of this. If there are too many people in uk, why are people still being given tier 1 visas to come and work, or is it a matter of using people and when they are done with them dump them? This is not fair as no one cares about us.

  10. [b]Are you one of the thousands of people like me, who have had their Tier 1 visa application refused on unfair grounds, the maintenance funds rule, or similar? If so, are you willing to be part of a media campaign to raise awareness of unfair and draconian guidelines and regulations for the points based system enforced by UKBA.

    I am an overseas qualified dentist, currently working in the NHS, and continue to fight a legal battle with the UKBA against my Tier 1 refusal. With channel 4, we are looking for people in similar situation to tell their story and campaign against these BNP style regulations.

    Interested, please get in touch. Confidentiality can be maintained by concealing identity on request.
    Please email me at docright@gmail.com[/b]

    1. Nice to see a bit of networking going on. ‘BNP style regulations’ goes rather too far, but getting together for group challenges and to generate some media coverage is a good plan.

  11. Hello everyone,

    I have been in UK since last two years, I applied for my extension of HSMP Under Tier 1 (general) Migrant. Unfortunately it was rejected as my Maintainance funds fell below £800 pounds by £60.

    I had funds in another UK account which showed that i met the criteria but did not disclose it at the time of application.

    I sent for an Appeal through my lawyers based on above grounds, my lawyers also wrote to Home Office to re-consider my application.

    Home Office got back to my lawyers saying that they will re-consider it iff we withdraw the Appeal.

    We withdrew the Appeal, and Home Office rejected the re-consideration once again.

    Now I have approached Immigration Advisory Service UK, who tell me that inspite of the withdrawal of Appeal and inspite of getting rejected in re-consideration i can submit a fresh new application from within UK within 28 days (even though it is an out of time application).

    They said that there was some provisions laid out in parlimentary debate on 17th march 2008 at column 97 where Lord Hansard and Lord bassam set out that applications under points system can submit a out of time application.

    anyone has any ideas…..or comments

    thanks

  12. Hello,

    Regarding my earlier response, Consession set out by Lord Bassam on 17th March 2008 column 97 in Lord Hansard text, is that a part of the immigration rule or merely just a debate.

    1. It’s not a rule as such, it’s what lawyers call a concession, and it would be unlawful for the Home Office not to apply the concession where it is clear that it should be applied. I can’t be any more specific than that, I’m afraid.

    2. Hi Freemovement,

      thank you for your response, i’m just hoping for the best my fresh new application is due to be submitted sometime next week.

      However, its a shame that Home Office is so strict with maintenance funds. It should not only see if an applicant has the stated amount in the bank. But it should also take into consideration that a migrant is paying his/her taxes, NI etc….

      In any case this ordeal is very stressful, its made me no better for money…loosing sleep, family distress and not to mention feeling unwanted…in spite of investing so much in this country over past 8yrs.

      No wonder i see so many skilled people heading else where….makes me wonder!

      Today an individual can easily borrow the required amount and after 3 months give it back and then recourse to public funds….

    3. Btw in my very first post i made a mistake….I wanted to say that i’ve been working in uk under HSMP for last 2yrs….then applied for extension under Tier 1 (General) Migrant.

      Sorry my Bad….

  13. FM thanks for an excellent site proving some valuable dialogue on these issues.

    I too am stuck with the same problem regarding the maintenance requirement of extending a visa under the PBS, had my application denied in August and the Appeal was heard in October; I am currently waiting for the determination. I cant describe how incredibly frustrating it is to sit in front of a judge that agrees that the system is essentially flawed but states he is unable to rule against the HO.
    I am sorry to say but anybody relying on the AIT for redress to a visa appeal for this requirement is facing some very bleak prospects and a very long fight.
    Personally I need to decide between re-applying under the 28 day concession or to carry on appealing.

    Has anybody had much luck in re-applying within the 28 day period after leave to remain has expired? The only way through this seems to be to share the collective experience and look to organise an action group to fight the HO. Anyone interested please mail me on Tier1action@gmail.com

    Kevin

    1. Kevin, UKBA has confirmed to immigration lawyers that they will consider and if the criteria are met grant applications made once an appeal is ended even if leave has lapsed. Any such application should be made promptly, though, and it may be necessary to include evidence that there is no outstanding appeal, such as evidence that the appeal has been withdrawn.

    2. Thanks FM,

      Good to know that there is some come sense being applied somewhere along the line. So am I right in reading that they have confirmed they will exercise discretion regading an application even if leave has lapsed?
      I just get the feeling that it may be a little like russian roulette on re-applying and will come down to the processing officer on the day.

    3. They have confirmed – but if you look at the exact terms of the PBS rules all one is required to have is either leave as x or to have last been granted leave as x, so it is clear on the face of the rules. Obviously, any re-application needs to be exactly right with all the required evidence, t-s crossed and i-s dotted.

    4. Hi Kevin & FM,

      I had posted earlier about the concession and mentioned that i would be soon applying.

      Well you would be pleased to know that i applied and i was Granted Leave to Remain until 2012 under Tier 1 (General).

      Kevin i’ve email you on the above mentioned email address.

      Please let me know if i can be of any help.

      Thank you.

      Keramos.

    5. Keramos, I’m hoping to put my new application next week, but the UKBA is acting up now, they won’t accept new applications when previous leave to remain expired over 6 month’s ago.

      Would you be able to email me at docright@gmail.com, be nice to get some feedback from someone who has been through the process before I take the plunge.
      Regards,
      Fahad

    6. Fahad,

      I believe it is 28 days or 6 months is only applicable in exceptional circumstances.

      However my understanding is that this is only applicable for PSW (transitional from student to work visa)for other case such as mine
      i think only 28 days was applicable.

      Please do not quote me on this, please take some expert advice.

      Keramos.

    7. Hi Kevin,

      I’m afraid I will soon be in the same boat as you. I just received an email from an HO caseworker asking for more evidence of maintainence funds – apparently what I submitted isn’t sufficient. I’m afraid that I didnt have 800 GBPs in my bank acct for 3 months at all times. I’m in the UK working under HSMP (for 2 yrs) earning a very good salary but still I’m going to be judged as not having enough funds to maintain myself. Go figure. Is there any advice you (or anybody else) would impart at this point BEFORE I get the likely rejection letter?

      Janet

    8. Can’t do personal advice here, but I strongly suggest you find a good immigration lawyer who knows what they are talking about

    9. Hi Janet,

      There is hope but it is a long process and you do need a good lawyer. If you’d like you can e-mail me and I can tell you about my experience with the process.