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Points Based System oddity


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I’ve just been drafting a skeleton argument for yet another Points Based System student refusal where there is no doubt the applicant has plenty of money, it is just that the evidence is not quite in the required form.

Points mean prizes!

This application was made in the summer, before the rules changed to allow students to rely on their parents’ bank accounts. However, the decision was not made until nearly October, by which time the policy guidance had changed (as of 20 August 2009, in fact).

So, under NA and Others the student has to show that he met the criteria at the date of application. However, the House of Lords was quite clear in Odelola that the law that is applicable is that pertaining at the date of decision. That reasoning must also apply to the policy guidance, both on a reading of the reasons the Lords followed in relation to executive policies and also on the tribunal’s (arguably wrong but currently more or less binding) analysis of the way the immigration rules have incorporated the guidance.

It therefore seems that the parental bank account can be considered as this was the law at the date of decision, but the relevant balance in the account is that at the date of the application.

Good news for my client, but it is rather an odd and convoluted system the Home Office and tribunal have between them managed to create. Simple it most certainly is not, which was supposed to be one of the guiding principles of the whole thing.

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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.


6 Responses

  1. According to UK Trade and Investment:

    “The UK’s diverse population guarantees its international outlook. A new immigration system is making immigration procedures even more straightforward. ”

    This compares rather differently from FM’s comment:
    “rather an odd and convoluted system the Home Office and tribunal have between them managed to create. Simple it most certainly is not,”

    I am guessing, but FM is probably nearer to reality on this one.

    1. Absolutely. The immigration system is absolutely NOT becoming ‘even more straightforward’, as countless universities, colleges and employers around the country are finding.

  2. The fly in the ointment is likely going to be that the new guidance requires that the student submits a birth certificate and letter from their parent when using a parent’s bank statements. If either of those documents are missing UKBA may be able to claim that the student’s documents do not meet the new guidance.

  3. I hate the Home Office. To call them incompetent would be kind. They change the rules and so called guidance on a whim without notification to anyone who might be affected and then refuse applications, (after a month of sitting on them BUT after receiving extortionate fees for God knows what), on the flimsiest pretext, most often because the poor punter was smiling in his passport picture or, even worse, the picture was more than 6 months old, because we know how adults rapidly change during that time- and then the poorer legal rep looks like an idiot because we didn’t check the “photo guidance” (after combing through 70 pages of guidance accompanying the form – deforesting an entire forest as the Home Office has “updated the guidance and form” yesterday). This is all part of the Home Office plan to undermine the work of legal representatives so we cannot provide definitive advice from one day to the next- much like the HMRC do to tax lawyers. END OF RANT

    1. I’m not sure I agree. I think the Home Office seems to LOVE immigration lawyers, which is why they change the law all the time, make the guidance incomprehensible to the lay person and make stupid decisions all the time. It creates loads of entirely unnecessary work for immigration lawyers and, sadly, keeps us in business. If they only listened to us a bit more and consulted properly, we’d all go bust. Those that say there is an ‘immigration industry’ (Still Immigration Minister Phil Woolas included) do not seem to realise that we are constantly (or at least a lot of us are) trying to do ourselves out of work by suggesting improvements to the system.

  4. I have been reading a few of your articles on the immigration rules and they are quite helpful. I had applied for PSW with a level 7 qualification but my application was rejected on grounds of the course and maintenance fees with the right of appeal. Its really frustrating since I didnt realise that the balance was calculated on a daily basis otherwise I wouldnt have used the account at all and the quidance is not clear on the issue. I have got clarification on my course from the university and planning to put my appeal through before the end of this week. i have a legal background and I do feel sorry for applicants who dont seeing as thought the guidance policy is ambiguous on varios points.