Complex Rules further explained
In the middle of 2010 the Court of Appeal (in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773) embarked upon a careful investigation into when it was and was not appropriate for the United Kingdom Border Agency to refuse an application for entry clearance or for leave to remain on the basis that the application contained "false representations". The applicant concerned was a student trying to extend his leave to remain. At the end of the judgment Lord Justice Longmore said:
"I am left perplexed and concerned how any individual whom the Rules affect (especially perhaps a student, like Mr A, who is seeking a variation of his leave to remain in the United Kingdom) can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done."
It's worth remembering that way back when it was initially propounded the points-based system was meant to be simplicity itself.
In its response to a consultation in 2006, called "a points-based system – making migration work for Britain" the then Government said that "Applicants will find the system simpler to understand" – and that the system would be a more efficient, transparent and objective application process.
In fact the system is getting more rather than less complicated. Since last summer the Immigration Rules have had to be revised three times following successful challenges to the lawfulness of the regime – in particular its inclusion in policy guidance and not in the Rules themselves, of criteria against which applications for entry clearance and for leave to remain are determined. At the same time new concepts, such as the "Highly Trusted Sponsor" have been introduced with each such revision. Rules which used to occupy at most half a page of an Immigration Law textbook now go on for two and a half pages each.
In DN (student - course ‘completed' - established presence) Kenya [2010] UKUT 443 (IAC) the Upper Tribunal grappled with the new term "an established presence studying in the United Kingdom."
Since this notion was introduced into the Immigration Rules in April of 2010 the question of whether or not a student has "an established presence studying in the United Kingdom" has itself determined how much money a student must show he or she has got in order to succeed in an application for leave to remain.
A student (studying outside central London) who has an "established presence" must show that he or she has funds to cover just two months worth of his or her maintenance (£1,200); but a student who does not have such a "presence" must possess nine months' worth of funds (£5,400)! For those studying in central London the figures are £1,600 and £7,200 respectively.
The Senior Immigration Judge (– or "transferred in Judge of the Upper Tribunal") noted that this phrase was explained at paragraph 14 of Appendix C of the Immigration Rules:
"14. An applicant will have an established presence studying in the United Kingdom if the applicant has completed a course that was at least six months long within their last period of leave as a Tier 4 migrant, a student or as a Postgraduate Doctor or Dentist, and this course finished within the last four months, or the applicant is applying for continued study on a course where the applicant has completed at least six months of that course and has been studying within the last four months."
Although it didn't assist the unfortunate student in the case he was deciding – the Senior Immigration Judge helpfully pointed out that for the word "completed" to have the same sense in both instances in this paragraph it couldn't mean that the student had to have passed his or her previous course – and could only mean that studying had been going on for at least six months…
Since it wasn't material to his decision the Judge didn't go on to hazard an explanation of the period to which the phrase"within the last four months" is intended to apply.