One of Gherson's clients has succeeded in her appeal against the Secretary of State for the Home Department's refusal to extend her stay in the UK under a new category of the Points Based System (PBS) - that of a Tier 1 (Post-Study Work) Migrant.
The client originally entered the UK as a student. Her case illustrates the changes to immigration regime concerning study and work in the UK which have been taking place since 2006, and which have reached completion with the most recent Statement of changes in the Immigration Rules, which take effect on 31 March 2009. It also illustrates how cases such as hers can be won or lost depending upon how carefully lawyers examine the policy statements made by the United Kingdom Border Agency (UKBA) which have accompanied all these changes.
Gherson's client applied successfully to extend her stay as a student until January of 2008, and then applied to vary her leave to remain from that of a student to a participant in the International Graduates Scheme (IGS). The IGS was introduced in May of 2007. It partially replaced the Science and Engineering Graduate Scheme (SEGS) which had been introduced in October of 2004.
The IGS enabled people who had an undergraduate degree or above from a UK University to enter or remain in the UK for a period of 12 months. It was deleted by Statement of Changes in the Immigration Rules HC 607, with effect from 30th June 2008. Among other things, HC 607 brought in the Tier 1 (Post-Study Work) Migrants category of the PBS - the purpose of which is:
"to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work."
The rules relating to Tier 1 (Post-Study Work) Migrants are 245Z to 245ZA.
On its website the UKBA announced transitional provisions whereby the points requirements for rule 245Z (covering applications for leave to remain as a Tier 1 (Post-Study Work) Migrant were to be waived for applicants with leave to remain under the IGS on or after the implementation of the rules. At the time of her application in November of 2008 for leave to remain as a Tier 1 (Post-Study Work) Migrant Gherson's client had leave to remain as a participant under the IGS until 4 December 2008.
However her application was refused because the UKBA awarded her no points for maintenance.
At her appeal the counsel instructed by Gherson on behalf of their client provided a detailed skeleton argument setting out the transitional provisions upon which the client relied. The Immigration Judge noted that Gherson had produced copies of documents - including email correspondence with the UKBA which:
“clearly stated that if there is valid leave to remain under the IDS [sic – the judge clearly meant the IGS] or SEGS on or after 30th June 2008 you will not be able to apply to extend your stay in your existing category. You will not be required to meet the points required if you are applying under this transitional arrangement. You can apply under these transitional arrangements at any time from 30th June 2008”
It followed the UKBA had not been entitled to refuse the client's application because she hadn't met the points requirement of rule 245Z.
Allowing Gherson's client's appeal the Immigration Judge said:
"Her present position is that she had leave to remain until 4th December 2008 and in plenty of time sought to extend her leave. I find that she was within the transitional arrangements, these were put in place to enable a person such as the Appellant to extend their stay without meeting the points requirement which was put in place by the points based system. This was a situation only available to those who had leave to remain after 30th June 2008 – as here.
It is a pity that these transitional Regulations and requirements were not more clearly understood by those decision makers who refused [Gherson's client’s] application initially. The e-mails clearly set out the situation. These are set out unequivocally and with clarity in the arrangements and the guidance available to the Respondent has clearly not been followed."
The Immigration Judge allowed the appeal and directed that the client should immediately be granted leave to remain in the UK.
Once again it can be seen that the PBS is not simple to understand. Decision makers in the UKBA itself have failed properly to understand it and to apply it. The law is in fact made up of the rules and the contents of the policy guidance and any transitional provisions. Far from being simple it's actually challenging. As is clear from this case professional advice and representation when applying for leave to enter or remain or when appealing against any refusal of an application is very likely to make the difference between success or failure.