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Landslide judgement by the Court of Appeal on the maintenance requirement

24 June 2010

The Court of Appeal has issued today a landslide judgement with important ramifications to be followed shortly on the UK Border Agency's website particularly for Tier 1 PBS applicants who have failed to meet or are now falling short of the maintenance requirement under Appendix C.

Many highly skilled migrants including bright international students have seen their applications refused or have failed to switch into the Tier 1 (General or Post Study Work) Scheme as they were unable to show the required funds above the £800 threshold as a daily minimum balance in the three months preceding the submission of their application.

The Court of Appeal has particularly taken issue with the constitutionality of the policy guidance at paragraph 37 of its judgment stating that:

"The three-month criterion formed no part of the rules applicable to these cases. The only relevant criterion was the requirement in Appendix C that they should have £800 at the time of application."

Thus, the Court has ruled that the Secretary of State was only entitled to refuse an application if an applicant did not have £800 at the date of application because "The three-month criterion formed no part of the rules applicable to these cases".

The key question asked by the Court is whether the immigration rules can lawfully incorporate provisions set out in another document which has not itself been laid before Parliament as in the case of the departmental policy. If the answer is yes, the Court poses the following questions:

(a) are the facts to be tested as at the date of the decision or of the appeal?

(b) at whatever point the facts are to be tested, is the policy to be applied as a policy or as a rule?

(c) in applying it, does ECHR art.8 have any application?

(d) If not, does art.8 have any independent application?

The Court seems to suggest that there is a greater want in the decision making process for discretion and common sense to be exercised in favour of migrants especially in light of the fact that the policy guidance has not been established through the legislative route "Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled  here for some years and are otherwise eligible for Tier 1 entry."



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