Asylum and Immigration Tribunal - the requirements of the Points Based System are mandatory

The Asylum and Immigration Tribunal's second determination relating to the Points Based System has revealed the inflexibility and inherent unreasonableness of the new regime - as well as the Tribunal's limited ability to rectify such defects when determining appeals against the United Kingdom Border Agency's decisions using its jurisdiction provided by section 85 (4) of the Nationality, Immigration and Asylum Act 2002.

 

The Tribunal's determination in NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 is very lengthy and will regrettably enough at least in so far as its reasoning in respect of the first and third Appellant's cases is concerned form the starting point for future decisions by the Tribunal regarding Points Based System appeals.

 

In this case the Tribunal considered the appeals of three people whose applications for leave to remain in the Tier 1 (Post-Study Work) category had been considered refused by the Secretary of State under Rule 245Z of the Immigration Rules. When they had made their applications they each had existing leave to remain in one of the categories from which people are allowed to switch in to the Tier 1 (Post Study Work) category; the first two appellants were students, the last appellant had been granted leave to remain under the now deleted International Graduates Scheme.

 

To succeed in an application under the Points Based System applicants must show that they score enough points for their attributes (for which the available points are set out at Appendix A of the Immigration Rules), their command of the English language (Appendix B) and for their ability to maintain and to accommodate themselves  (Appendix C).

 

In each of the cases considered by the Tribunal the appellants had satisfied the Secretary of State that they had the necessary number of points under Appendices A and B. It was because they didn't score enough points under Appendix C - maintenance - that their applications had been refused.

 

As the Tribunal noted - the particular requirements of Appendix C have altered since the introduction of Tier 1 (Post-Study Work). Applicants for leave to remain must have £800 but anyone applying after 31 October 2008 must show that they have had this £800 for a period of three months prior to the date they apply. Those who applied before 31 October of 2008 however only had to show that they had £800 at the time they applied. This variation in what Appendix C requires is due to the references in Rule 245AA (and in Appendix C) to guidance issued by the UKBA.

 

Rule 245AA (a) provides:

 

"245AA. Documentary evidence (a) Where Part 6A or Appendices A to C, or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence."

 

 The first Appellant had got a BSc degree from Portsmouth University and had applied for leave to remain under Tier 1 (Post Study Work) on 19 November of 2008. He had produced bank statements for the period from 14 August 2008 to 14 November 2008. However the statements only showed a balance consistently over £800 since early October. On 18 December 2008 his application had been therefore been refused. His appeal was allowed by a Senior Immigration Judge because by the time of the hearing the Appellant had completed a period of three months over which the balance on his account had not dropped below £800.

 

The Senior Immigration Judge's determination was based on the Tribunal's jurisdiction under section 85 (4) of the Nationality, Immigration and Asylum Act 2002. This provides:

 

"(4)  On an appeal under sections 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."

 

 It's not difficult to see why the Senior Immigration Judge's used his jurisdiction under section 85 (4) in this way. The Appellant had not satisfied the strict requirements of the Immigration Rule (as qualified by Appendix C and the guidance) at the time he had made his application but he had now shown that he met the requirements of the rule regarding adequacy of maintenance. The Senior Immigration Judge was effectively allowing the appeal because he was satisfied that the appellant met the maintenance requirement specified in the rule. The purpose of the rule's requirements is clear enough - it is to ensure that anyone granted leave to remain in this category has enough funds to make it unnecessary for them to have recourse to public funds if they should become unemployed. The purpose of the rule had been met by the Appellant's evidence.

 

The Secretary of State applied for and obtained an order for the reconsideration of the first Appellant's appeal.

 

The second Appellant had a Masters Degree in Actuarial Science from City University. She had applied for leave to remain on 29 October 2008, and so she didn't have to show that she had had £800 for three months but only that she had a closing balance of £800 or more for the month immediately preceding her application. But instead, because this was all she could get from her bank at the time, she submitted a bank statement covering the period from 10 September 2008 to 25 September 2008, which showed that during this time she had always had more than £800. On 11 December 2008 the Secretary of State refused her application on the basis that the period covered by the bank statement wasn't the period required to be covered by the Rules as affected by the transitional guidance for applications made before the end of October 2008. At her appeal she provided more recent bank statements covering the period 29 September to 29 October 2008. During this period the Appellant had had a closing balance of over £800.

 

The Immigration Judge dismissed the second Appellant's appeal. He said that the Secretary of State's guidance had required the Appellant to produce a bank statement covering the one month period immediately before her application and that the statement from 10 September 2008 to 25 September 2008 didn't meet this requirement. He didn't make any reference to the bank statements for September to October, stating that section 85 (4) required him only to consider the circumstances appertaining at the date of the hearing before him, which was conducted in February of 2009. By the date of the decision to refuse the application (11 December 2008) the guidance had changed so as now to require the Appellant to show that she had had £800 for a three month period immediately prior to the application. Since the balance in the Appellant's account had fallen away after it had reached £800 she had not demonstrated the necessary self sufficiency.

 

The Appellant applied for and obtained an order for reconsideration on the basis that the Immigration Judge appeared to have misunderstood section 85 (4).

 

The third Appellant had been studying in the UK since 1998. After completing her course in 2007 she had been granted leave to remain in the UK as a participant in the International Graduates' Scheme. She applied for leave to remain on 9 July 2008, not long after the implementation of the Post Study Work subcategory of Tier 1. The evidence she produced in support of her application included bank statements covering the period from 12 April 2008 to 11 June 2008. The statements indicated that during this period the third Appellant had been overdrawn, and so her application was refused on the basis that she'd failed to show that she had £800. In her appeal against that decision she explained that her bank balance was the consequence of her having been ill from December 2007 to February of 2008. She also said that she had understood the rules as requiring her to demonstrate that she had earned £800 per month, rather than to have maintained her bank balance at this level or higher. As soon as she had become well she'd recommenced her job but was unable to bring her account back to the necessary level quickly enough. Her appeal was dismissed. The Immigration Judge stated, indicating the stringency of the Points Based System Regime:

 

"Sadly for her therefore she does not meet the requirements of the Immigration Rules, the fact that she was ill a few months earlier is not a matter which I can take into account, and neither is the fact that she misunderstood the rules."

 

 The third Appellant's application for reconsideration was refused by an Senior Immigration Judge in the Tribunal, but then granted by a Deputy High Court Judge on the basis that it was arguable that the Court of Appeal's judgment in GOO v Secretary of State [2008] EWCA Civ 747 indicated that the Immigration Rules did not have to be read with the stringency that the Immigration Judge had adopted in dismissing her appeal.

 

The arguments before the Tribunal by both parties in each case are fully set out in the determination itself. On the first Appellant's behalf it was argued that the approach taken by the Senior Immigration Judge in allowing the appeal was both permitted by section 85 (4) and represented the application of common sense by the Tribunal in seeking to avert the inherent injustice in requiring a person who plainly could demonstrate his self sufficiency to leave the country simply because he had not met the precise requirements of the Rule and of course, the guidance at the time he made his application.

 

Similarly in the third Appellant's case the facts demonstrated the injustice of requiring someone who had lived in the UK lawfully for a very long time and who had been granted leave to remain under the Post Study Work subcategory's predecessor, the International Graduates' Scheme, to leave the country due to her failure to comply with the requirements of the rule because of her illness at a material time and her misunderstanding of the new Rule.

 

The proper exercise by the Tribunal of section 85 (4), and its jurisdiction to consider the rules as the Court of Appeal did in its  judgment in GOO - which involved asking whether they really could be so stringent as they appeared, enabled the Tribunal to achieve justice.

 

The second Appellant's case was different in that the Immigration Judge in that case had effectively used section 85 (4) against the Appellant - he had ignored evidence she had placed before him which, although it had not been presented to the Secretary of State with her application, showed that at the time of her application she had the necessary funds. He had approached the appeal on the basis that the only material date was the hearing before him, and if the Appellant did not have the necessary funds then her appeal must fail.

 

The Tribunal's conclusions

 

 With regard to section 85 (4) the Tribunal went to great lengths to point out that the  Rules required the funds requirement to be met at the time of the application. It stated:

 

"Appendix C states that applicants must show "[i]n all cases" that they have the funds specified "at the date of the application and must also have had those funds for a period of time set out in the guidance specifying the specified documents for that purpose". The language could not be clearer. It stipulates that a decision must be made by reference to a fixed point in the past, namely the date of application. It is an historic test affixed to that specific date."

 

 It followed that being able to show that you have the necessary funds at the date of the hearing of your appeal could not show that your application should have succeeded. Being able to do something now is not the same as having been able to do something in the past. For this reason the Senior Immigration Judge had been wrong to allow the first Appellant's appeal by the exercise of his jurisdiction under section 85 (4) of the Nationality, Immigration and Asylum Act 2002 and the Tribunal dismissed it.

 

With regard to the susceptibility of the Points Based System Rules to being read as the Court of Appeal had decided in GOO that it was appropriate to regard the Rules (now deleted and replaced by Tier 4 of the Points Based System) relating to students - the Tribunal found that the Points Based System Rules created a regime which was devoid of fluid concepts like adequacy of maintenance and accommodation - of any of the other requirements. The requirements were mandatory and did not provide for decision makers to make up their own minds about an individual applicant's academic or linguistic abilities. In the same vein they stipulated funds requirements. The Rules did not permit the exercise of any discretion.

 

For this reason it was clear to the Tribunal that the Points Based System Rules were a very different kind of animal from those considered in GOO. They therefore found that the Immigration Judge who had dismissed the third Appellant's appeal had not erred in law.

 

The second Appellant had lost her appeal because the Immigration Judge had used section 85 (4) against her - saying that because she didn't have the requisite funds for the requisite amount of time at the time of the hearing before him she must lose her appeal. There was no dispute between the representatives that this approach was wrong. But the Secretary of State's representative submitted that the error of law was not material since the second Appellant had to lose anyway because she hadn't provided specified documents with her application. She couldn't ask that the Tribunal should now use section 85 (4) to permit her to rely on evidence afterwards. This, it was said, was the effect of Rule 245AA. It prevented the Appellant from submitting documents after the day of their applications to show that they did have the necessary funds over the stipulated period.

 

The Tribunal disagreed. Rule 245AA didn't contain any requirement for the production of documents at a particular time. Neither did the similar Rule 34A. Moreover rule 34C stated that a failure to produce the specified documents would render the application invalid - but in each of the cases before it the Secretary of State had proceeded to make a decision on under Rule 245Z - she had not simply stated that the application was invalid. The Tribunal stated that:

 

"67. In principle, therefore, there is nothing to stop the Tribunal from exercising its power under s.85(4) to consider evidence that applicants have submitted post-application to show that they had the requisite £800 pre-application".

 

 Of course section 85A - created by section 19 of the UK Borders Act 2007 - would have the effect of disapplying both sections 85(4) and 85 (5) to Points Based System appeals - but this provision was (and is) not yet in force.  Until it was in force there was nothing to fetter the applicability of section 85 (4).

 

But the Immigration Judge in the second Appellant's appeal had ignored the evidence she sought to rely to demonstrate that she had met the requirements of the Rules when she applied for her further leave to remain. 

 

The Tribunal stated:

 

"The second appellant was entitled to expect the IJ to have acted under s.85(4) of the 2002 Act and to have taken this further evidence into account. Accordingly the IJ's legal error was material. Since the second appellant had satisfied the transitional requirements for Maintenance (Funds) in full, the decision we must substitute for that of the IJ is to allow her appeal."