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 SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms V Laughton, instructed by Messrs PenningtonsFor the Respondent: Ms J Isherwood, Presenting Officer

The transitional provision concerning maintenance under Tier 1(Post Study Work), for those with previous leave under theInternational Graduates Scheme, only applies to applications madeon or before 31 October 2008. It has not been extended and there isno legitimate expectation that it should have been.

DETERMINATION AND REASONS

The Issues

1. The Appellant is a citizen of South Korea who has obtained anorder for reconsideration of the determination of ImmigrationJudge Scott-Baker, who on the papers dismissed theAppellant's appeal against the decision of the Respondent on

© CROWN COPYRIGHT 2009

19 December 2008 to refuse to vary her leave to remain inUnited Kingdom.

2. The Appellant has been in the UK since September 2003. Shehad leave as a student until on 5 December 2007, when shewas granted leave to remain under the InternationalGraduates Scheme (“IGS”). The IGS and other similarschemes were replaced by a new points based scheme forTier 1 (Post Study Work), which came into force on 30 June2008. The provisions of the new scheme are contained inparagraphs 245V, 245Z and 245ZA of the Statement ofChanges in the Immigration Rules (HC395 as amended).Paragraph 245Z(e) requires a sufficiency of funds as specifiedin Appendix C of the Rules. Transitional arrangements forthose who were already here on the discontinued schemessuch as the IGS (as opposed to initial applicants) are set out invarious policy guidance documents issued by the Respondent.One such transitional arrangement relates to sufficiency offunds (generally referred to as “maintenance”).

3. The Immigration Judge concluded that the Appellant did notfall within the terms of the transitional arrangements relatingto maintenance, and did not meet the new maintenancerequirements under the points based system either. Thereforeon this basis she dismissed the appeal.

4. The Appellant's grounds for reconsideration, as argued beforeme by Ms Laughton, assert first that the Judge was in materialerror of law in concluding that the transitional arrangementson maintenance did not apply to the Appellant. Ms Laughtonmaintained that the transitional arrangements applied tothose who were in the UK and whose last grant of leave wasunder the IGS and was due to expire after 30 June 2008. TheAppellant fulfilled these requirements as her last leave toremain was granted under the IGS and was valid until 2December 2008. Moreover she met all the substantiverequirements of the transitional provisions, including, for thepurpose of this hearing, the requirement in respect ofmaintenance, which demanded a single bank statement with aclosing balance of not less than £800 at any time in the 30days prior to the presentation of the application. Because shewas eligible for the transitional arrangements onmaintenance, she did not have to meet the normalmaintenance requirement under the new scheme which wouldrequire her to have had a minimum balance of £800throughout the three months prior to the presentation of herapplication, which would be the position outside thetransitional arrangements. Alternatively Ms Laughton arguedthat the Appellant had a legitimate expectation that she would

2

be entitled to the benefit of the transitional arrangements formaintenance. As a further alternative, Ms Laughton arguedthat the Respondent’s decision would be in breach of theAppellant’s Article 8 rights.

The Reconsideration Hearing

5. Before me, both Representatives agreed that the closingbalance in the last bank statement of the Appellant prior toher making her application to the Respondent on 27November 2008 was £994.45. This was the closing balance ina statement dated 13 November 2008. Both Representativesagreed further that if the transitional arrangements did applyto the Appellant then she had discharged her burden of proofwith regard to maintenance and her appeal should be allowedas there was no other issue arising.

6. Ms Isherwood accepted that the Appellant was entitled to thebenefit of transitional arrangements relating to the closure ofthe IGS. She had benefited from them by being able to makeher application under Tier 1, without the need to satisfy thenew requirements in respect of attributes and command ofEnglish, as set out in Appendices A and B of the Rules.However, Ms Isherwood maintained that the transitionalarrangement for maintenance under the new points basedsystem was separate and distinct and was expressly availableonly to those who had submitted their applications within theUnited Kingdom up to and including 31 October 2008.

7. Ms Laughton helpfully provided a skeleton argument andproduced in her bundle of documents a guidance note fromUKBA at page 34, and five e-mails (pages 26-29) fromDecember 2008 to February 2008 between enquirers and theUKBA concerning the transitional arrangements. Shemaintained that these e-mails supported her submissions thatthe transitional arrangement relating to maintenance hadcontinued beyond 31 October 2008 or alternatively that theRespondent had created by these documents a legitimateexpectation that they would.

8. The Guidance Note to which she referred is from IND and wasdated 2 June 2009. It stated:

“If you have a valid leave to remain under IGS or SEGS [Science andEngineering Graduates Scheme] … on or after 30 June 2008 you willbe able to apply to extend your permission to stay in your existingcategory. You will not be required to meet the points requirement ifyou are applying under this transitional arrangement. You canapply under these transitional arrangements at any time from 30June 2008. If your application is successful you will receive an extra

3

year from the date your visa is due to expire. You will need to useapplication form Tier 1 (Post Study Work) …”

With regard to the e-mails, Ms Laughton in her oralsubmissions seemed to imply that some are specificresponses to others. However I should observe at this pointthat I do not consider this is so. They are arranged in reversedate order. The names of the enquirers have been blanked outand cannot therefore be matched. However, if one looks at thedates of the respective e-mails and their contents, none of thefive appear to relate directly to any other. They are in effect acollage of separate enquiries and responses. Ms Laughtonreferred me to the two e-mails on page 28 of her bundle whichrefer expressly to maintenance. As it is not alleged that theAppellant was herself the enquirer in question in any these e-mails, I have treated them all as being Representative of thetype of correspondence being generated at the time. The firste-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 asper automated response, there are no points requirements to bemet, which means not even for maintenance requirement. Am Icorrect in understanding this?

“Tier 1 (Posed Study Work) - IGS – Transitional ArrangementIf your leave to remain on the basis of IGS or SEGS expiresbefore 30 June 2008, you will not be eligible for an extensionunder Points Based System Tier 1 (Post Study Work).If you have valid leave to remain under IGS on or after 30June 2008 you will be able to apply to extend yourpermission to stay in your existing category. You will not berequired to meet the points requirement if you are applyingunder this transitional arrangement. You can apply underthese transitional arrangements at any time from 30 June2008. If your application is successful you will receive anextra year from the date your visa is due to expire. You willneed to use application form Tier 1 (Posed Study Work),which is available on the UK Border Agency website atwww.ukba.homeoffice.gov.uk/workingintheuk/tier1/poststudy””

The IND e-mail is a reply on this issue albeit to someone elsewho would seem to have raised a similar question. It states asfollows:

“3 December 2008Thank you for your inquiry.When applying for Tier 1 (Post Study Work) or Tier 1 (Entrepreneur)from within United Kingdom, applicants are required to submitdocuments showing they have had statement of at least £800 for atleast three months before applying. If the balance has dipped

4

below £800 during the three-month period the maintenancerequirement will not be met."

9. Ms Laughton submitted that the reference to “not beingrequired to meet the points requirement” in the automatedresponse cited in these e-mails (which were dated inDecember 2008) included maintenance and demonstratedthat whatever the position might have been previously,transitional arrangements had been extended beyond 31October 2008 to cover anybody who had extant leave underthe IGS expiring after 30 June 2008. Obviously an applicationfor extension would have to be made during the currency ofthe extant leave. In the alternative, she submitted that theAppellant had a legitimate expectation in the light of theambiguity in the documents referred to above that she wouldbe entitled to apply under the transitional arrangement onmaintenance, and also that the refusal of the Appellant'sapplication in these circumstances was in breach of theAppellant's article 8 rights.

10. Ms Isherwood was unaware of the specific e-mails reliedupon by Ms Laughton and sought time to make furtherinquiries concerning whether there had been any extension ofthe transitional arrangements relating to maintenance and ifso whether they applied to the Appellant. I agreed to giveeach Representative the opportunity to submit furtherevidence and written submissions to me and to the otherparty on this point by e-mail within seven days of the date ofthe hearing. I would then consider whether to proceed directlyto promulgate a determination or whether, in the interests ofjustice, any further hearing would be required.

The Written Submissions

11. In the event I received written submissions from bothRepresentatives. Neither sought any further oral hearing and Idid not consider that one would be necessary given thecomprehensiveness of the respective written submissions.

12. Ms Isherwood’s written submissions were as follows.

“ INTRODUCTION

1. On the 27th November 2008 the appellant applied to extend herleave as a Tier 1 (Post Study Work) Migrant. The appellant wasissued with a refusal letter on the 19th December 2008. Theappellant could not demonstrate that she had been inpossession of the £800 for the period specified in the guidance.

2. The appellant appealed and in a matter decided “on the papers”on the 26th March Immigration Judge Scott-Baker dismissed theappeal.

5

3. The appellant sought reconsideration for the following reasons:

a. The IJ erred in law in stating that the appellant’sapplication had fallen outside of the transitionalarrangements

b. The IJ erred in failing to have regard to the bankstatements submitted by the appellant

c. The IJ erred in law for failing to give any or any adequatereasons for concluding that removal would not bedisproportionate

4. Reconsideration was ordered by Senior Immigration Judge

Spencer on the 29th April, stating

‘It is arguable that the Immigration Judge made amaterial error in law in concluding that the appellant felloutside the transitional arrangements for those withleave under the International Graduate Scheme (IGS)’

5. At an initial error in law hearing before Senior Immigration JudgeBatiste on the 8th June 2009, clarification was sought on whatmaintenance transitional provisions were applicable toapplicants previously granted under IGS. There appeared someconfusion over the relevance of:

a. The original transitional arrangements for maintenance,which stated:

‘Up to 31 October 2008, you do not have to showyou have had the funds for at least three monthsbefore your application. You must only show youhave the required funds at the time you apply…..However, until 31October 2008, they do not needto cover the three month period, but they mustbe dated no more than a month before yourapplication’; and

b. The transitional arrangements relating specifically to IGSapplicants.

6. The original transitional arrangement for maintenance wasintroduced because it could not be expected that migrantswould anticipate the incoming criteria. However, this transitionalperiod ended on 31 October 2008. No applicant could make useof this transitional arrangement after 31 October 2008 underany circumstances. The Tier 1 (Post-study Work) Guidance –under the Rules the authoritative source of information as to therequirements - has always stated that IGS transitional usersmust satisfy the prevailing maintenance requirements. Whilstother information from the UK Border Agency may have given acontrary impression this was neither unambiguous nor plainlyauthoritative such as to demonstrate a policy position or createa legitimate expectation.

7. For these reasons the Respondent’s position is that IJ Scott-Baker did not materially err in law in maintaining the refusal toextend the appellant’s leave to remain.

6

Ground 1: That the appellant’s case did not - as found - fall outside Transitional Arrangements

8. The central issue for this ground is whether the appellant in factmeets the Maintenance requirement to enable her to beawarded 10 points for funds under Appendix C.

9. The appellant plainly falls within the transitional provisions for aperson granted leave under IGS and was accordingly awarded75 points under the Attributes section. The refusal letter states‘Points awarded as claimed as per the transitionalarrangements of the International Graduates Scheme’.

10. The appellant’s position is that she did not have to meet themaintenance requirement under the IGS transitional provisionbecause that provision removed the need to do so. It does notappear to be her case – nor, it is submitted, could it reasonablybe so – that she was entitled to benefit from the originaltransitional provision on Maintenance. This is wholly inaccordance with IJ Scott-Baker’s finding that ‘The appellant hadmade her application in November 2008 and therefore hadfallen outside the transitional provisions’.

11. Additionally, the Guidance as at November 2008, handed in atthe error in law hearing, makes a clear distinction betweenpoints scored in initial applications and points scored under thetransitional arrangements. The distinctions are set out forAttributes, English Language Requirement. With regards to theMaintenance requirement, page 19 of the guidance, it states‘Maintenance requirement – all applications’. There are notransitional arrangements provided. This means that regardlessof your application the appellant has to meet the maintenancerequirement. Also, the appropriate application form reflects thesame information (A1 to A28 of the Respondent’s Bundle). TheMaintenance section is at A22 and no transitional provisions areexpressed.

12. Applying the correct guidance the IJ found that on a number ofoccasions in the required period the appellant’s saving fellbelow £800.

13. The appellant seeks to rely on automated e-mails apparentlyfrom other cases to claim that under the Respondent’s policyshe does not have to meet the Maintenance requirement.

14. These e-mails may be ambiguous. They state:

“Tier 1 (Post Study Work) – IGS – Transitional Arrangements”

‘You will not be required to meet the points requirement ifyou are applying under this transitional arrangements’

15. Plainly the phrase “the points requirement” is significant andopen to different interpretations. The Tribunal is invited to notethat the word “requirement” is singular. Furthermore the e-maildoes not say “any” points requirement. As stated above, the IGStransitional arrangements are clearly expressed in both theGuidance and the application form as applying only to the

7

Attributes test. Whilst the e-mail may be ambiguously worded itdoes not, on any proper reading of all available material,provide a clear declaration that the Maintenance requirementneed not be met.

16. The appellant claims in the alternative the legitimateexpectation of not having to meet the maintenance requirementgiven what is said in the e-mails. As above, no such expectationderives from considering all of the expressions of the UKBA’spolicy position. At best the position is unclear; at worst (for theAppellant) it is abundantly clear from the Guidance and theapplication form, which refer to the IGS transitional provision inrespect of the Attributes test only.

17. The Respondent notes that not to require an IGS applicant tomeet maintenance would create the extraordinary position of apenniless applicant being entitled to remain if all otherrequirements were met.

18. For the Tribunal’s information, the UKBA has amended theautomatic e-mail with effect from 19 May 2009. The revisedversion is attached. This makes it clear that maintenance doesneed to be met. Lest it be suggested that this represents achange of position, it is noted that the Guidance has not beenamended at the same time.

Ground 2 – Failing to have regard to the bank statements submitted by the appellant

19. It is plain from the statements in the bundle that the Appellantdid not hold the required £800 throughout the three monthperiod prior to the application. Thus any failure to have regardto those statements could not be material.

Ground 3 – Failing to give any or any adequate reasons for concluding that removal would not be disproportionate

20. It is acknowledged that the IJ’s reasoning in dismissing theappeal under Article 8 is wholly deficient. It is in no waysatisfactory to say that simple failure to meet the Rules isdispositive of Article 8.

21. The Tribunal is asked to consider whether this is on any readinga case that was bound to be dismissed under Article 8. TheAppellant’s protected Article 8(1) private life has been formedwhen her immigration status was that of a person expected toleave at the end of her stay, first as a student then under theInternational Graduate Scheme. Indeed the instant applicationwas on a basis with a strict time limit. It is difficult to see thatlegitimate interference with private life formed in suchcircumstances (based on the Tribunal’s acceptance of theRespondent’s case on Ground 1) can possibly haveconsequences of such gravity as to engage Article 8notwithstanding what is said in AG (Eritrea).

22. If further consideration of Article 8 is required, the Respondentalso asks that the submissions above in respect of the positionon needing to meet Maintenance requirements are considered.

8

The Appellant’s grounds allege that the Respondent has“misled” the Appellant into believing that this was not so: this isdenied.

23. It is for these reasons that the IJ did not materially err in law indismissing the appeal. “

13. Ms Laughton replied to these written submissions in thefollowing terms.

“ INTRODUCTION

1. The Appellant is a citizen of South Korea. She appearedbefore SIJ Batiste on 8th June 2009 for a reconsiderationhearing of the decision of IJ Scott-Baker dated 26th March2009 refusing the Appellant’s appeal against a refusal tovary leave to remain as a Tier 1 (Post Study Work) Migrantdated 19th December 2008. At the conclusion of the hearing,SIJ Batiste gave either side 7 days to make furthersubmissions and lodge any further evidence in relation tothe existence of any policy relating to the Appellant’s case.The Respondent’s submissions were received by theAppellant on 15th June 2008. These submissions have beenprepared in response on the next working day.

2. It should be noted that the Respondent’s submissions arewider than merely considering the existence of the policy.The Appellant relies upon all of the arguments submitted inthe skeleton argument at the reconsideration hearing,including the fact that as the Respondent had not submitteda reply under Rule 30, he should be prevented fromasserting that there was no material error of law.

3. The Appellant does not intend to rehearse the argumentscontained within the skeleton argument and merelyresponds to the specific points raised by the Respondent inthe written submissions.

GROUND 1 – The IJ erred in law in stating that theAppellant’s application had fallen outside of the transitionalarrangements.

4. The Appellant submitted clear evidence that transitionalarrangements in place meant that as she had leave toremain under the IGS, she did not have to satisfy the pointsbased requirement. The Transitional Arrangementsdescribed in guidance issued by the UK Border Agency dated28th January 2009 state (page 34 of AB):

“Tier 1 (Post Study Work) – IGS – Transitional ArrangementIf your leave to remain on the basis of IGS or SEGSexpired before 30th June 2008, you will not be eligibleto apply for an extension under Points Based SystemTier 1 (Post Study Work).

If you have valid leave to remain under IGS or SEGSon or after 30th June 2008, you will be able to apply toextend your permission to stay in your existingcategory. You will not be required to meet the points

9

requirement if you are applying under thistransitional arrangement.’

5. The Respondent asserts that these e mails may beambiguous. It is difficult to see how there is any ambiguity.The maintenance requirements are part of the points basedsystem. There was no suggestion that this policy onlyrelated to attributes and English language requirements. Ifmaintenance was excluded from the transitionalarrangements, one would expect this to be stated. Further,the Respondent has failed to comment upon the fact thatthere was a further email dated 8 December 2008 by WayneFairweather of Immigration Group, UK Border Agency in aresponse to an enquiry as to whether an individual whoapplied under the transitional arrangements would need tomeet the maintenance points requirement under Tier 1(page 27 of AB);

“If you have valid leave to remain under IGS or SEGSon or after 30th June 2008, you will be able to apply toextend your permission to stay in your existingcategory. You will not be required to meet the pointsrequirement if you are applying under thistransitional arrangement. You can apply at anytimeunder this transitional arrangement from 30 th June 2008. If your application is successful you willreceive an extra year from the date your visa is dueto expire. You will need to use application form Tier1 (Post Study Work), which is available…

If your application is successful you will be grantedfurther leave to remain, up to a combined total of twoyears in your existing category and the Post StudyWork category, during which time you will be free toseek employment without having a sponsor…”

6. It should be noted that this response was in direct responseto a query as to whether an individual had to fulfil themaintenance requirements of the points based system (seepage 28 and 26 of AB). It is respectfully submitted that theposition could not be any clearer. It is therefore clear thatthose applying under the transitional arrangements (such asthe Appellant) did not need to satisfy the points basedrequirements, including the points relating to maintenance.

7. It is respectfully submitted that the Respondent has notplaced any evidence before the court to counteract such aclear expression of policy. The document submitted with theRespondent’s submissions entitled auto response messageis dated 19th May 2009 and therefore post dates the date ofapplication and refusal. The fact that the policy now statesthat the Appellant must still meet the maintenancerequirement is irrelevant, as it was not in force at therelevant time. If anything, the fact that the Respondent hasdrastically changed the wording leads one to an irresistibleinference that it constitutes a change in policy.

10

8. In the alternative the Appellant relies upon the argumentsregarding legitimate expectation contained in paragraph 15to 21 of the skeleton argument.

Ground 3 - The IJ erred in law for failing to give any or any adequate reasons for concluding that removal would not bedisproportionate

9. The Respondent accepts that the IJ erred in law in relation toher consideration under Article 8, but asserts that theground is bound to fail. The Appellant asserts that the erroris clearly material and would not be bound to fail and reliesupon paragraphs 23 to 34 of the skeleton argument. Inresponse to the allegation that the Appellant was expectedto leave at the conclusion of her student visa and/or IGS, thewhole point of IGS and the subsequent Tier 1 system was toattract the most attractive candidates to the UK andencourage then to remain.

Conclusion

10. The learned SIJ is respectfully requested to allow the appealoutright.”

The Context of the Rule Changes in June 2008 and the associatedPolicy Guidance of the Respondent

14. In considering these submissions, I have first assessedthe context of the material rule changes introduced in June2008. Prior to the change, the Rules provided for a variety ofschemes for which the requirements to be satisfied were oftenexpressed in general terms which were subject tointerpretation and hence to inconsistency in application. Thenew points based system provides for 5 Tiers in all, of whichTier 1 replaced the IGS, the Science and EngineeringGraduates Scheme (SEGS) and the Fresh Talent: Working InScotland Scheme (FT:WISS). These schemes werediscontinued in June 2008 and the new points based systemwas introduced in their place. There were additionalrequirements to be satisfied by applicants, such as attributesand command of English. A further very important change wasthat applications would henceforth be judged objectively onthe basis of clearly specified criteria awarding points inspecific categories. Successful candidates had to demonstratetheir entitlement to the required number of points.

15. At all times a distinction was drawn between initialapplicants for Tier 1 Post Study Work and those applicantswho were already in IGS (SEGS) and FT:WISS. This wasbecause it was understood by the UKBA that changes of thismagnitude could produce material unfairness withoutappropriate arrangements to smooth out the transition. Someof those transitional arrangements related to the

11

consequences of withdrawal of the old schemes and theswitch to a different points based system. Others related tothe new objective methods of evaluation of matters such asmaintenance under Appendix C.

16. The “guidance” referred to in Appendix C is a referenceto the UKBA Policy Guidance contained in the documententitled “Tier 1 (Post-Study Work) of the Points-Based System– Policy Guidance”. This Policy Guidance has evolved. The firstversion (version 06/08) was issued with the introduction of thescheme on 30 June 2008. The second version (version 09/08)was issued on 11 September 2008 and made changes to thesection entitled “Tier 1 (Post-study Work): Maintenance”. Itincluded a new page at the end in a different typeface headed“Transitional arrangements for maintenance (funds)”. This isthe version in force when the Appellant made her applicationto the Respondent on 25 November 2008. Given the limitednature of the issues before me, I shall now focus on the issueof maintenance for applicants whose previous leave wasunder the IGS. However, I should briefly record for the sake ofcompleteness that further versions were published later andthat there were different transitional provisions for applicantswhose previous leave was under the IGS to those whoseprevious leave was under the FT:WISS.

17. The Policy Guidance for those applying after 31 October2008 required as follows.

“89. One of the requirements of Tier 1 is that an applicantcoming to the UK must be able to support himself/herself forthe entire duration of his/her stay in the UK without use ofpublic funds (benefits provided by the state). An applicantwho is unable to support himself/herself could face financialhardship because he/she will not have access to most statebenefits.

90. In order to qualify for entry clearance, or leave to remainunder Tier 1 an applicant must show that he/she has enoughmoney to support himself/herself. The maintenancerequirements are detailed below:

• Applicants outside the UK seeking entryclearance must have at least £2,800 of personalsavings which must have been held for at leastthree months prior to the date of application.

• Applicants in the UK seeking further leave toremain must have at least £800 of personalsavings which must have been held for at leastthree months prior to the date of application.

91…

92…

12

93. The evidence to support personal savings for at leastthree months must be original, on the official letter-headedpaper or stationery of the organisation and have the officestamp of that organisation. It must have been issued by anauthorised official of that organisation.

94. Evidence must be in the form of cash funds. Otheraccounts or financial instruments such as shares, bonds,pension funds etc, regardless of notice period are notacceptable.

95. The evidence of maintenance must be of cash funds in thebank (this includes savings accounts and current accountseven when notice must be given), loan or official financial orgovernment sponsorship available to the applicant. Otheraccounts of financial instruments such as shares, bonds,pensions etc., regardless of notice period, are not acceptable.

96. Only the following specified documents will be acceptedas evidence of this requirement:

(i) Personal bank or building society statementscovering the three consecutive months.

The most recent statement must be dated no morethan one calendar month before the date of application.

The personal bank or building society statementsshould clearly show:

• The applicant’s name;• The account number;• The date of the statement;• The financial institution’s name and logo;• Transactions covering the three month period;• That there are enough funds present in the

account (the balance must always be at least£2,800 or £800, as appropriate).

Ad hoc bank statements printed on the bank’sletterhead are admissible as evidence (thisexcludes min-statements from cash points).… [sets out guidance on electronic bank

statements]We will not accept statements which show thebalance in the account on a particular day as thesedocuments do not show that the applicant holdsenough funds for the full period needed.”

18. For those applying before 1 November 2008, the PolicyGuidance was essentially in similar terms save that theversion of 11 September 2008 made important additions atthe beginning and at the end. At the beginning it stated:

“Tier 1 (Post-Study Work) of the points-based system PolicyGuidance.

13

This document contains guidance to [sic] our policy onTier 1 (Post-Study Work) of the points based system towork in the United Kingdom.

Maintenance (funds) requirement: We have madetransitional arrangements for proving maintenance(funds) for applicants and their family members whomake applications up to and including 31 October 2008.You can find details of these on the last page of thisdocument.”

19. The last page states as follows.

“Transitional arrangements for maintenance (funds)

Normally, when applying to Tier 1 (Post-Study Work) fromwithin the United Kingdom, you will have to show that youhave enough funds, by sending documentation showing youhave had savings of at least £800 for at least three monthsbefore applying.

Because this is a new requirement and it may be difficult toprove this immediately, we have put transitionalarrangements in place for applicants and their familymembers submitting their applications within the UnitedKingdom up to and including 31 October 2008.

Up to 31 October 2008, you do not have to show you have hadthe funds for at least three months before your application.You must only show you have the required funds at the timeyou apply. The types of documentary evidence you need tosend to support your application are as described in thisdocument. However, until 31 October 2008, they do not needto cover the three-month period, but they must be dated nomore than a month before your application.

For example, if you apply under Tier 1 (Post-Study Work) on12 July, a single bank statement with a closing balance of£800 dated between 12 June and 12 July 2008 will meet themaintenance requirements. A bank statement dated before 12June 2008 will not be acceptable.”

20. This is the context against which I now assess thesubmissions made to me.

The Extent of the Transitional Arrangement for Maintenance

21. It is common ground between the representatives thatthe method of evaluating the adequacy of maintenance waschanged from the general assessment of sufficiency to a veryspecific requirement of having a minimum of £800 in a bankaccount for the three months prior to the making of theapplication. Obviously there needed to be a transitionalarrangement for this as potential applicants would need three

14

months notice of the new test so that they could organisetheir affairs accordingly.

22. The Policy Guidance cited above in my judgementmakes unambiguously clear what the transitionalarrangement with regard to maintenance was; that it will onlyapply to applications submitted to the Respondent by 31October 2008; why it was structured in the way it was; andwhat the requirements are for applications made on or after 1November 2008. I would observe that the change in themethod of evaluating the adequacy of maintenanceintroduced in June 2008 is not inherently about the pointsbased system as such, but rather about the objectivity of theevidence required to show that an applicant has met themaintenance requirement. By this I mean that the change inthe method of evaluating the adequacy of maintenance is insubstance distinct from the points based system itself. It couldhave been introduced into the old IGS without any pointsbased system being involved at all.

23. Independently of the question of maintenance, thewithdrawal of the IGS on 30 June 2008 required its owntransitional arrangement whereby those who were currently inthe UK with leave under the scheme but whose leave wouldnot expire prior to 30 June 2008 could nevertheless thereafterbe enabled to make a valid in-country application in the samecategory even though the IGS itself had been withdrawn andreplaced by the Tier 1 Post-Study Work scheme, set up on adifferent basis and with additional requirements as toattributes and command of English.

24. Accordingly, those who made inquiries to the UKBAspecifically about the IGS scheme would be informed, notleast by the automated response to an e-mail on the subject,of the transitional arrangement relating to it. The reference insuch e-mails to “you will not be required to meet the pointsrequirement if you are applying under this [my emphasis]transitional arrangement" was directed at the issues relatingspecifically to the structural transition from the IGS to thepoints based system as Ms Isherwood has described, ie as toattributes and command of English. Those who enquired aboutmaintenance would be advised of the separate and distincttransitional arrangement relating to maintenance.

25. Mrs Laughton has argued that in December 2008 (i.e.after the 31 October 2008 deadline) people asking UKBAabout maintenance specifically were given only the advicerelating to the IGS. However as I have already observed, noneof the five e-mails supplied to me appears to relate directly to

15

any other. They are simply a collage arranged in reverse dateorder. The only two e-mails from enquirers asking expresslyabout maintenance are those dated 9 December (page 26)and 4 December (page 28). The reply from Mr Merryweather(page 27) upon which Ms Laughton places much reliance, isdated 8 December. It cannot therefore be a reply to theenquiry of 9 December. Nor given the content andterminology used in the respective e-mails could it relate tothe enquiry of 4 December. The e-mail from UKBA dated 3December (page 28) is the response one would properlyexpect to a post 31 October enquiry about maintenance. Ihave no reason to suppose that this would not be the standardresponse to people making similar enquiries. It is whollyunambiguous in its statement that after 31 October 2008savings of at least £800 had to be demonstrated for at leastthree months before applying i.e. the then normalarrangement.

26. There is therefore nothing in any of the documents Ihave been shown to suggest that the transitional arrangementrelating to maintenance was ever extended beyond 31October 2008; or that there was any basis in logic or fairnessfor doing s0; or that the UKBA gave inconsistent or misleadinganswers to people who made specific enquiries about thetransitional arrangement for maintenance. In reaching thisconclusion I have taken into account that those making anunspecific enquiry without mentioning maintenance about theIGS transitional arrangement only will have received anautomated response that does not address maintenance atall. As I have said, the actual method specified for evaluatingmaintenance is separate and distinct from the points basedsystem. I do not consider that in context there is materialambiguity in the UKBA documentation. If anyone was in doubtthere was a simple system for contacting the UKBA forclarification, as the e-mails on page 28 of the Appellant’sbundle dated 3 December 2008 demonstrates.

27. On this basis I now consider the various specific issuesraised relating to this appeal.

Lack of Respondent’s Reply

28. Ms Laughton has submitted that the Respondent failedto provide a Reply to the grounds of application and that MsIsherwood's submissions were wider than merely consideringthe existence of the policy. Therefore Ms Laughton maintainsthat the Respondent should be prevented from asserting thatthere was no material error of law by the Immigration Judge. Idisagree. Ms Laughton has cited the case of MB (Rule 30

16

Procedure Rules) DRC [2008] UKAIT 00088. However this caseprovides that Rule 30 of the Asylum and Immigration Tribunal(Procedure) Rules 2005 should be read in conjunction withRule 31(4) (c). This has the effect that if there is a Reply Imust take it into account but if there is no Reply it is a matterwhich I may take into account in the light of all facts in thecase.

29. I have applied this guidance. There was indeed no Replyby the Respondent. However, Ms Isherwood's submissionswith regard to the Respondent’s policy, which includes thetransitional arrangement as to maintenance, are in effect thatthe Immigration Judge got it right and she did not errmaterially in law. There is nothing surprising in that. MsIsherwood also supplied information in support of hersubmissions, which I have found useful in understanding theoverall context against which this appeal must be decided.Thus, whilst I have taken into account the fact that there is noReply, I consider that the interests of justice require me totake into account all facts and submissions provided to me inthis case. I should add that Ms Isherwood has conceded thatthe Judge's analysis of article 8 is inadequate but presumablyMs Laughton does not object to that. I shall come back to thisissue later.

Maintenance Requirement under the Rules and the Respondent’sPolicy

30. I have already described the context and extent of thetransitional arrangement relating to maintenance. I haverecorded the agreement of both Representatives that werethe Appellant eligible to fall within its scope, she would beentitled to succeed in her appeal, because the closing balancein her last bank statement prior to making her application(dated 13 November 2008) was £994.45. However, theunfortunate reality is that the Appellant did not submit herapplication until after 31 October 2008. By the time she didsubmit it, on 27 November 2008, the transitional arrangementon maintenance was no longer open to her, for the reasons Ihave already described above. She therefore had to satisfywhat was then and is now the normal rule, which requires aminimum bank balance of £800 for three months ending inthe month prior to the application.

31. Ms Laughton has submitted in her skeleton argumentthat the Judge failed to have regard to the bank statementssubmitted by the Appellant. However this does not avail theAppellant. I have looked at all the bank statements referredto by Ms Laughton and the Appellant has not maintained for

17

the whole period of three months ending in the month of herapplication a minimum balance of £800.

32. Thus I conclude that, even if there were any error of lawby the Immigration Judge it is not material because theAppellant was unable to satisfy the maintenance requirementdue to the fact that at various times within the relevant threemonth period the balance on her bank account fell below£800. Thus, notwithstanding Ms Laughton’s varioussubmissions to the contrary, I conclude that there is nomaterial error of law in the Judge's dismissal of the Appellant'sappeal under the Immigration Rules.

Legitimate Expectation

33. Ms Laughton then offered the alternative submissionthat even if the Appellant did not come within the terms of thetransitional arrangement relating to maintenance, she had alegitimate expectation that she would as a consequence of theinformation supplied by the Respondent. She has citedvarious cases in support of her submission, which I have takeninto account. I accept her submission that the Tribunal hasthe jurisdiction to challenge an immigration decision on thebasis of the public law concept of a legitimate expectation,which falls within the ground of appeal that the Respondent'sdecision is "otherwise not in accordance with the law”.

34. Of particular clarity and brevity as to the approach to beadopted in assessing this concept is the guidance offered bySchiemann LJ in R v Newham Borough Council ex parte Bibi[2003] 1 WLR 237 where he states as follows.

“In all legitimate expectation cases, whether the substantive orprocedural, three practical questions arise. The first question is towhat has the public authority, whether by practice or promise,committed itself; the second is whether the authority has acted orproposes to act unlawfully in relation to its commitment; the third iswhat the court should do."

35. Applying these principles I conclude, for the reasonsgiven above, first that the Respondent has, neither by practicenor promise, ever committed himself to extending thetransitional arrangement relating to maintenance beyond 31October 2008. I have not found within the documentssupplied to me any evidence that he has expressly orimpliedly given a contrary impression. I have no reason tosuppose that the reply given by Ms Bennett of UKBA in her e-mail of 3 December 2008 was not the standard responsegiven by UKBA to anyone inquiring about the transitionalarrangement on maintenance. It follows therefore that I also

18

conclude that the Respondent has not acted unlawfully inrelation to his commitments on the subject. Thus there is nobasis for the Tribunal to intervene on the basis of legitimateexpectation, again notwithstanding the contrary submissionsmade by Ms Laughton.

Article 8

36. The final issue relates to Article 8. Ms Laughton hassubmitted that the Immigration Judge's assessment wasinadequate to the extent that it represented a material errorof law and should be set aside. The Judge dealt with this inone paragraph only and in the following terms.

“7. So far as Article 8 is concerned, I accept that during theAppellant's time in the United Kingdom she has developed a privatelife in the UK, but there was no evidence before me that she hadany family life here. However, I am not satisfied that the decisionfor the Appellant to leave the United Kingdom would bedisproportionate on the evidence that is currently before me as shecannot come within the terms of the Immigration Rules."

37. Ms Isherwood agreed that this was an inadequate andmistaken approach that cannot be sustained. I agree also.The mere fact that the application cannot come within theterms of the Immigration Rules is not in itself a basis forconcluding that removal would be proportionate under Article8. However there is no dispute concerning the evidencerelating to the Appellant's private and family life in the UK andI am therefore able to reach my own conclusion in substitutionfor that of the Judge.

38. Ms Laughton submitted in her skeleton argument thatthe Appellant had established a private life in the UK, thoughnot any family life. It was a strong private life which can besummarised in the following terms. The Appellant arrived inthe UK in September 2003 and has lived here for nearly 6years, always in accordance with the requirements ofimmigration law. She has obtained a Bachelor of Arts degreein Fashion Photography. Since her graduation she has beenworking as a professional photographer for various magazinesand companies. She has built up excellent contacts within thefashion industry in the UK. She is now involved as a co-founder and production manager in the launch of her newmagazine, which will create jobs for 24 people in the UK. Sheis an essential part of the venture.

39. Ms Laughton submitted further that the removal of theAppellant would constitute interference with her private lifeand would have consequences of such gravity as potentially toengage Article 8, where the test for engagement is not a

19

particularly high one. Whilst removal would be for alegitimate aim and in accordance with the law, it would not beproportionate. The interference is not necessary. The reasonthe Appellant was refused under the Immigration Rules wasbecause she had not maintained a constant £800 in heraccount for the three months prior to her application. Thecause of this was that the Appellant genuinely believed shedid not need to do so as she would be applying under thetransitional arrangement. This belief was based upon agenuine misunderstanding. If she had been aware of thenecessity to maintain the minimum balance of £800 she couldhave done so. She will not be reliant upon public funds orface financial hardship. She has always been able to maintainherself and could continue to do so as well as employing anumber of others. If removed she would not be eligible toreapply under the scheme because it is now more than 12months since she passed her degree. This means that shewould be unable to return to the UK and the contacts she hasbuilt up in the fashion industry would be lost and themagazine she is establishing would have to be abandonedwith the loss of jobs for others.

40. Ms Isherwood on the other hand has argued that this isa case that would be bound to be dismissed under Article 8.The Appellant’s private life was established in the UK whenher immigration status was that of a person expected to leaveat the end of her stay. It was difficult to see in thosecircumstances that legitimate interference with her private lifecould have consequences of such gravity as to engage Article8, and in the alternative, if it did, removal would beproportionate. There was a strong policy imperative in theinterests of consistency and fairness in the move to objectivityin assessing immigration claims. It should not be eroded. If theAppellant had believed that she was entitled to the benefit ofthe transitional arrangement on maintenance after 31 October2008 she was mistaken and should not benefit from her ownmistake. She had had plenty of time to organise her affairs tomeet the new requirement.

41. Having carefully considered these submissions I haveconcluded as follows. I accept that in the six years theAppellant has been in the UK, she has always been within thelaw and has never been a burden on the state. She hasestablished a private life in the UK, both in terms of pursuingher education to graduate level and in laying the foundationsfor a future career. She is currently an integral part of a newfashion magazine, which reflects the contacts she has madeand her own personal skills. She anticipates that themagazine will employ 24 people. She says all this will be lost if

20

she is removed. I do not accept this latter point. If a businessis viable, few individuals are truly indispensable. Moreover,the Appellant’s skills and qualifications are portable and canfound a career for her in her home country in South Korea,which has a powerful and growing economy.

42. I accept that the Appellant may have made a genuinemistake about whether she would qualify for the transitionalarrangement on maintenance, probably because she did notproperly address her mind to the issue or make properenquiries. That however is her responsibility.

43. I have concluded for the reasons stated above that theRespondent did not do anything that could give rise to anylegitimate expectation that she would so qualify. I accept thatthere is a strong policy element for the Respondent in theinterests of consistency and fairness in making a clean break,subject to fair transitional arrangements, from the old systemof subjective and inconsistent evaluation of maintenance.Indeed the past delays in decision making and the large bodyof jurisprudence that has built up around this subject in recentyears demonstrates the pitfalls of subjectivity in assessingclaims. The reality is that wherever the dividing line is drawnsome people will fall on the wrong side of it. It may be that theAppellant could have organised her affairs to meet the normal£800 for three months requirement but it is due to her errorthat she did not do so.

44. On the basis of this analysis, I have concluded for thepurposes of the step by step approach to Article 8, that theAppellant has established a private life in the UK and that theRespondent's decision would result in interference with it.That interference would have consequences of such gravityfor the Appellant as potentially to engage Article 8. Howeverremoval would be for a legitimate aim and would be inaccordance with the law. That leaves the question ofproportionality.

45. In Huang v SSHD [2007] UKHL 11 the House of Lords clarified theapproach to be adopted when assessing proportionality in the following terms.

19. In de Freitas v Permanent Secretary of Ministry of Agriculture,Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council,drawing on South African, Canadian and Zimbabwean authority,defined the questions generally to be asked in deciding whether ameasure is proportionate:

"whether: (i) the legislative objective is sufficientlyimportant to justify limiting a fundamental right; (ii) themeasures designed to meet the legislative objective arerationally connected to it; and (iii) the means used to

21

impair the right or freedom are no more than isnecessary to accomplish the objective."

This formulation has been widely cited and applied. But counsel forthe applicants (with the support of Liberty, in a valuable writtenintervention) suggested that the formulation was deficient inomitting reference to an overriding requirement which featured inthe judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, fromwhich this approach to proportionality derives. This feature is (p139) the need to balance the interests of society with those ofindividuals and groups. This is indeed an aspect which should neverbe overlooked or discounted. The House recognised as much in R(Razgar) v Secretary of State for the Home Department [2004] UKHL27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, havingsuggested a series of questions which an adjudicator would have toask and answer in deciding a Convention question, it said that thejudgment on proportionality

"must always involve the striking of a fair balance betweenthe rights of the individual and the interests of thecommunity which is inherent in the whole of the Convention.The severity and consequences of the interference will callfor careful assessment at this stage" (see para 20).

If, as counsel suggest, insufficient attention has been paid to thisrequirement, the failure should be made good.

20. In an Article 8 case where this question is reached, the ultimatequestion for the appellate immigration authority is whether therefusal of leave to enter or remain, in circumstances where the lifeof the family cannot reasonably be expected to be enjoyedelsewhere, taking full account of all considerations weighing infavour of the refusal, prejudices the family life of the applicant in amanner sufficiently serious to amount to a breach of thefundamental right protected by Article 8. If the answer to thisquestion is affirmative, the refusal is unlawful and the authoritymust so decide. It is not necessary that the appellate immigrationauthority, directing itself along the lines indicated in this opinion,need ask in addition whether the case meets a test ofexceptionality. The suggestion that it should is based on anobservation of Lord Bingham in Razgar above, para 20. He wasthere expressing an expectation, shared with the ImmigrationAppeal Tribunal, that the number of claimants not covered by theRules and supplementary directions but entitled to succeed underArticle 8 would be a very small minority. That is still hisexpectation. But he was not purporting to lay down a legal test.

46. This approach is expressed in terms of family life butapplies also to private life. I have to balance the interests ofsociety with those of this particular individual and those withwhom she enjoys her private life, on the specific facts of thiscase. Obviously the interests of society are to maintain a firmand fair immigration system expressed in terms of theImmigration Rules and the policies relating thereto as I havedescribed above. I must and do give due deference to this.However, I am also conscious that the Appellant may have

22

been able to satisfy those Rules and policies but for a genuinemisunderstanding on her part.

47. This Appellant is a person whose private life has for 6years been structured in terms of education, contacts andbusiness opportunities from being legally in the UK. Thus farshe has been in the UK only with limited leave. She stands tolose the fruits of her present contacts and businessopportunities if removed, even though of course she wouldtake her skills with her and will have the opportunity to build anew career in her own country. The Appellant would in myassessment be an asset in whatever society she settled.

48. I have decided on balance and on the particular facts ofthis case that it would not be disproportionate for theAppellant to be removed. Therefore, I dismiss her appeal onall grounds.

DECISION

The Immigration Judge made no material error of law indismissing the Appellant's appeal under the Immigration Rulesand on the basis that the Respondent had acted in accordancewith the law. However the Judge did materially err in law inher assessment of the Appellant's Article 8 appeal, and thefollowing decision is accordingly substituted:

“The Appellant’s appeal against the Respondent’s decision is dismissed under Article 8.”

Signed Dated 30 July 2009

Senior Immigration Judge Batiste

23

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Heard at Procession House On 8 June 2009

Before

Senior Immigration Judge Batiste

Between

SK

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

FUNDING DETERMINATION

The Tribunal is satisfied that, at the time the Appellant made thesection 103A application and for the reasons indicated in the SeniorImmigration Judge’s order for reconsideration, there was asignificant prospect that the appeal would be allowed uponreconsideration. It orders that the Appellant’s costs in respect of theapplication for reconsideration, the preparation for reconsiderationand the reconsideration are to be paid out of the relevant fund, asdefined in Rule 33 of the Asylum and Immigration Tribunal(Procedure) Rules 2005

Signed Dated 30 July 2009

Senior Immigration Judge Batiste

24

25