No "perceptible rationale" in maintenance requirements of points based system

In one of its recently issued determinations the Upper Tribunal's Immigration and Asylum Chamber seems to have begun freely to express its frustration at what it sees as the idiosyncrasies of the points-based system.

In AM and SS (PBS – Tier 1 – joint accounts) Pakistan [2010] UKUT 169 the Tribunal, chaired by its vice president Mr C. Ockelton, has indicated that the system's maintenance requirements are lacking any "perceptible rationale".

The Tribunal had to decide whether the Immigration Judge who had dismissed the Appellants' appeal had properly understood what was paragraph 77 of the United Kingdom Border Agency's Points Based System (Dependant) - Policy Guidance.

AM and SS are a married couple. AM's application for leave to remain as a Tier 1 (Post-study work) Migrant was refused because he had not shown that he had had sufficient funds in his bank account for the three month period before he had submitted his and his wife's application for leave to remain.

At the hearing of their appeal against the UKBA's decision the Appellants produced more bank statements covering the same three month period. The statements related to an account jointly held by AM and somebody else who was a friend of AM's. Throughout the three month period the statements indicated a balance in excess of what was required (£800 for the first Appellant AM and £533 for his wife as his dependant).

As the Tribunal notes in its determination:

"evidence produced at the hearing of an appeal which, if it had been produced with the application would have allowed the application to succeed, is admissible in an in-country appeal under the provisions of s. 85(4) of the Nationality, Immigration and Asylum Act 2002, as explained in NA and Others (Tier 1 post-study work – funds) [2009] UKAIT 00025."

So the Immigration Judge admitted this evidence. But he decided that it couldn't help the Appellants because the money in the account was not only for the use of AM – it was also for his friend, the other holder of the account.  There was no way of knowing how much of it was AM's and how much was the friend's. He said:

"I take it as implicit to the overall context of paragraph 77 of the Guidance that the other one or more individuals who are also named as joint account holders must have an important interest turning upon the application, as to make it unthinkable that they could or would dispute the minimum sum as having been consistently available over a three months period to the person or persons actually making that application. It cannot be seen how such an assumption could be made about a third party and stranger whose personal financial circumstances cannot fall to be assessed in the application".

The Tribunal looked at the Points Based System (Dependant) - Policy Guidance.  – and in particular at the specifications as to the form in which the Guidance required evidence of funds held for the three month period.  This formed paragraphs 93 to 96 of that edition; but similar words appear in the current edition of the guidance at its paragraphs 85 to 88. 

The description of the evidential requirements for the maintenance conditions of the points-based system are also similarly worded in the current edition of the Tier 1 (General) of the Points Based System – Policy Guidance – and in other guidance relating to other categories and sub categories of the points-based system.

Because the words are pretty much the same regardless of the Tier or subcategory of Tier under which a person is applying for leave to remain or for entry clearance it follows that what the Tribunal says in the section of its determination reproduced below is generally applicable.

The Tribunal said this about the evidential requirements, and about the mistaken approach taken by the Immigration Judge in assuming that the points based system actually made sense:

"Provided the money is in the account, it does not appear to matter who it belongs to. It may, for example, have been borrowed simply for the purpose of having bank statements meeting the requirements of the Guidance. The Immigration Judge's comments are obviously sensible. His mistake was to apply common sense to the interpretation of the points-based scheme. There is no perceptible rationale behind the conclusion that the possession of £800 (and not a penny less) for three months (and not a day less) is showing that an application is granted, the applicant will be satisfactorily maintained for what may be a very long period in the future. The rules are simply hoops which have to be jumped through."

It remains to be seen whether the Court of Appeal's eagerly awaited judgment in MJ Sri Lanka v Secretary of State for the Home Department – which was heard on 25 and 26 May 2010 and in which the Court is to consider the legality of the points-based system -  will be any kinder to it.

It is now generally recognised that entirely innocent mistakes can lead to refusals of applications made under the points-based system. Anyone applying for entry clearance or for leave to remain under any of its provisions, or who is appealing against a refusal of an application, is strongly advised to seek professional legal advice.