IMPORTANT Maintenance Funds requirement illegal (Court Case)

[ens]

Anastasia Pankina et ors v SSHD [2010] EWCA Civ 719

The case won.

Later appealed by Home Office in Court of Appeal (CA), but won again.

The only way to appeal now is the House of Lords (HL).

[ens]

The appeal against the Home Office interpretation of the Points Based System has succeeded in the Court of Appeal. Regular readers may remember I went along to and reported on part of the hearing. The case is Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719.

The Court does not strike down the entire PBS system but holds that the only binding and effective part of the PBS rules and guidance are those set out in the Immigration Rules themselves. This is because these are the only provisions that have been properly laid before Parliament in accordance with section 3(2) of the Immigration Act 1971.

In the context of these appeals, which concerned the maintenance aspect of Tier 1 Post Study Work visas, the only requirement was that the applicant held £800 at the time of application, as specified in Appendix C of the Immigration Rules. All the other requirements set out in the guidance, for example on the form of evidence to be presented and the length of time for which the funds had to be held, were merely guidance and do not have the strict force of law ascribe to them by the tribunal in the case of NA and Others [2009] UKAIT 00025.

The Court also held that that tribunal was correct regarding the effect of section 85(4) of the 2002 Act, in that the relevant date is the date of application, not the date of appeal. This is specified in the rule itself:

39… The rule as framed makes it clear that it is to the Home Office that the necessary proof must be submitted. The argument that a fresh opportunity arises on appeal is based on s.85(4) of the 2002 Act, which provides that on such an appeal 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 decisionâ€

[ens]

In Ms Pankina's case the AIT was right, for the reasons set out above, to allow her appeal. Her documents, which showed that she had £800 in the bank at the time of her application, proved as much as was lawfully required of her. The Home Secretary's appeal against the AIT's decision fails.

[sahilgupta27]

In Ms Pankina's case the AIT was right, for the reasons set out above, to allow her appeal. Her documents, which showed that she had £800 in the bank at the time of her application, proved as much as was lawfully required of her. The Home Secretary's appeal against the AIT's decision fails.

Is that only for Tier1 Post Study Work Visas or for the T1 General Visas Also? and if So does that mean the maintenance clause for T1 General Visa Category still holds good??

Thanks.
Sahil

[ens]

I think it will be for all Tiers, the maintenance requirement will remain the same, except necessity to have the same minimum amount all 3 months prior to application. Let`s wait for new policy guidances

[sahilgupta27]

I think it will be for all Tiers, the maintenance requirement will remain the same, except necessity to have the same minimum amount all 3 months prior to application. Let`s wait for new policy guidances

well thanks for that. Any idea when the guidance will be updated on the website? Any other source to get updates on the new guidance.

THanks.

[ens]

you could subcribe to RSS or email updates on BIA or UKBA website and will get this information as soon as guidance updtaed, if it will ever be updated...

have you heard of todays Mrs May declaration of making more restrictions for Tier 1 ? interim limit 5000 applications per annum and raising the mark to 80 points....

http://www.homeoffice.gov.uk/media-cent ... on-limit11

[sahilgupta27]

you could subcribe to RSS or email updates on BIA or UKBA website and will get this information as soon as guidance updtaed, if it will ever be updated...

have you heard of todays Mrs May declaration of making more restrictions for Tier 1 ? interim limit 5000 applications per annum and raising the mark to 80 points....

http://www.homeoffice.gov.uk/media-cent ... on-limit11

I understand this interim limit will be imposed on/from 19th July. Does that mean if I apply before 19th july..I will still be evaluated as per the old rules.

They are still talking about increasing points limit from 95 to 100. Are they still counting the maintenance funds in there??? This has become so confusing.

Thanks.

[ens]

if you are fast enough....
but you still need 3 months of funds laid on your account...

[sahilgupta27]

if you are fast enough....
but you still need 3 months of funds laid on your account...

I am sorry....I am confused again....Didnt you mention that the maintenance funds clause has been taken away?? or that rule will also be applicable from 19th July?

Thanks.

[ens]

if you are fast enough....
but you still need 3 months of funds laid on your account...

I am sorry....I am confused again....Didnt you mention that the maintenance funds clause has been taken away?? or that rule will also be applicable from 19th July?

Thanks.

The case in the Court of Appeals against Home Office was won, but guidance are still the same, and you might still be refused based on this requirement.

However you could appeal that refusal, like Mrs Pankina, in court based on case law, the precedent mentioned in 1st post.