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Tier 1 General: has your application been refused solely on the basis of maintenance?

26 August 2010

This article clarifies some important changes brought into effect by the UK Border Agency which might assist migrants who have had their application refused solely for failing to satisfy the maintenance requirement under Appendix C of the Immigration Rules. In particular, we wish to focus on the implications resulting from the Statement of Changes HC382 published on 22 July 2010 and the Court of Appeal's judgment in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719.

It is mixed news for Tier 1 General migrants. The good news is that if you have been refused permission to enter or stay in the UK (known as 'entry clearance' and 'leave to remain') solely because you failed to meet the maintenance (funds) requirement, you may now wish to request a review of your case. The UK Border Agency (UKBA) has published a policy was published on 23 July 2010 to deal specifically with these cases.

Following the judgment in the cases of Pankina, the UKBA was criticized for having placed the policy guidance on equal par with the Immigration Rules which must be approved through a negative resolution in the Parliament. Further, the Court of Appeal called for greater common sense and discretion when assessing the evidence provided in support of a prospective Tier 1 migrant's application.

As a result, the UKBA has now put in place transitional arrangements and remedies in place for migrants who:

▪       submitted applications abroad for entry clearance between 23 June and 22 July 2010 inclusive; or

▪       submitted applications for leave to remain on or before 22 July 2010, when they had lawful status in the UK.

In a nutshell, if your application was unsuccessful and submitted within the above timeframes, you can request the Home Office to review the original decision to refuse your application. Please note that you will not be able to rely on any additional evidence and that applicants have only until 22 June 2011 to request a review.

However, if you currently have a live application with the UK Border Agency or if you intend to apply in the future, your will be automatically considered in line with the new Statement of Changes. This has had the effect of incorporating into the Immigration Rules the specific section of the policy guidance dealing the maintenance, namely the fact that migrants have to keep the required funds as daily minimum balance for a consecutive 3 months period. The required daily minimum amount for the main applicant is £800 for an in country application and £2,800 for an entry clearance application.

Therefore, paragraph 1 A of Appendix C has been amended in such way:

(a)         The applicant must have the funds specified in the relevant part of appendix C at the date of the application;

(b)         if the applicant is applying for entry clearance, leave to enter or leave to remain as a Tier 1 Migrant (other than a Tier 1 (investor) Migrant), a Tier 2 Migrant or a Tier 5 (Temporary Worker) Migrant, the applicant must have had the funds referred to in (a) above for a consecutive 90-day period of time, ending no earlier than one calendar month before the date of application;

(c)         if the applicant is applying for entry clearance or leave to remain as a Tier 4 Migrant, the applicant must have had the funds referred to in (a) above for a consecutive 28-day period of time, ending no earlier than one calendar month before the date of application;

(d)         if the funds were obtained when the applicant was in the UK, the funds must have been obtained while the applicant had valid leave and was not acting in breach of any conditions attached to that leave; and

(e)         The applicant must provide the specified documents."

Please note that since 19 July 2010, the UK Border Agency has also increased the threshold to qualify under Appendix A from 75 to 80 points and that a monthly cap has now been introduced for all entry clearance applications.

Our immigration consultants can help you if you are concerned about your application or wish to review a prior refusal under the Tier 1 General Scheme.

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Migra & Co is a private immigration company, regulated by the Office of the Immigration Services Commissioner (OISC), reference number F200900038. This website is not a government website and as such, we are not linked or affiliated with the UK Visas and Immigration. We offer expert legal advice and flexible tailored solutions to both private and corporate clients to ensure that their immigration needs are met. If you wish to download or prepare a UK visa application form, you can do so free of charge by visiting the Official UKVI website.