This announcement is of particular interest to all applicants under the points-based system who received a refusal of their application as a result of not meeting the maintenance requirements. In accordance with the judgement in the case of Pankina, the UK Border Agency  introduced an amended policy guidance for such applicants. Essentially, this means that if you made an application within a  certain time frame, you will  be able to ask the UK Border Agency to review the decision to refuse your application.

 

The amended guidance can be found if you click here  and should be read carefully. This will replace the guidance published on the UK Border Agency on 23 July 2010.

 

Notably, for applicants who had previously asked the Home Office to review their decision and were refused as a result of not having valid leave to remain in the UK at the time of requesting the review, the UK Border Agency will automatically review their decision. If however an applicant in this situation does not receive an updated decision by 31 January 2011 they must contact the address shown in the amended policy guidance.

  

The below comments are explanatory notes of the Maintenance policy document published on 22 November 2010 and which replaced the previous one issued on the UK Border Agency website on 23 July 2010. They are an attempt to clarify the policy document however, please refer to the policy guidance itself, which can be found if you click here , for further in depth coverage of a point.

 

Eligibility

 

The policy guidance covers all applicants and their dependants who:

 

Either

a.     Applied for leave to remain under Tiers 1, 2, 4 and 5 of the Points-based and

                                          i.    The application was made up to and on 22 July 2010

                                         ii.    The application was refused solely on maintenance (funds) grounds

Or

b.    Applied for entry clearance under Tiers 1,2, 4 and 5 of the Points-based system and

                                          i.    The application was made up to and on 22 July 2010

                                         ii.    The application was refused solely on maintenance (funds) grounds

 

 

The policy guidance does not apply to applications either for leave to remain or entry clearance on or after 23 July 2010. Such applications are considered under the current rules that were laid before parliament on 22 July and become law on 23 July 2010.

         

The judgment in the case of Pankina[1]on 23 June was related to the period where an applicant had to hold a required amount of funds. The judgment stated that the maintenance assessment must be undertaken in line with the Immigration Rules.

 

Notably the Immigration Rules at the time (prior to 23 July 2010) only specified the need for applicants to have appropriate funds (according to the Tier or sub tier the application was applied under) at the date of the application.

 

The five categories that you may find yourself in

 

                                          i.    Current applications

                                         ii.    If your application was refused without a right of appeal or your appeal was dismissed

                                        iii.    If your application is currently going through the appeals process

                                        iv.    If you received an in country refusal and left the UK

                                         v.    If you submitted a Judicial Review application

 

The UK Border Agency has accepted that applications submitted and not yet decided as at 23 July 2010 and those refused on the maintenance requirement between the period 23 June and 22 July 2010 will require reconsideration following the judgment of Pankina.

 

However the UK Border Agency does not feel it is under any legal obligations to reconsider refused applications prior to 23 June 2010.

Nevertheless applications made and refused on maintenance grounds only will be treated as exceptionally and the UK Border Agency is willing to reconsider such applications in line with the new judgment if you, the applicant, request the UK Border Agency to do so.

 

  

In-Country

 

This section is relevant to applicants with current pending applications for leave to remain which were submitted prior to 23 July 2010. To qualify under this you must show that your application has all the attributes needed in line with the published guidance except the maintenance attribute. The UK Border Agency recognises that it is not possible for applicants to provide evidence of meeting the maintenance requirement on the day of the application, the attribute will be considered on the basis that the applicant can demonstrate that they hold the required level of funds (for their entire family) at the closing balance on one day during the one month period prior to the date of the application. If you are granted leave under this, your leave will confer rights and impose conditions as specified by the Immigration Rules.

 

If however you do not meet this requirement, your application will be refused. The UK Border Agency will refer you to the fact that your application was however considered under the Pankina judgement. Please note that if you fall under this category you do not need to take any action as your application will be considered automatically.

 

Refused applications

 

If you are an applicant who submitted an application for leave to remain prior to 23 July 2010 which has been refused and you are still in the UK seeking a remedy you must write to this below address:

 

PBS (AP & Others) Employment Routes Workflow Team

UK Border Agency

PO Box 3468

Sheffield S3 8WA

 

Additionally you must provide:

 

a) Your Home Office reference number

b) Your current residential address

c) Your current valid passport/travel documents

d) Biometrics card (if you have one)

e) An email address if possible

 

The UK Border Agency guidelines state that if you request that your previous refused application is reconsidered under the new policy it will be regarded as a switching application from your current/previously expired grant of leave to that of the leave applied for.

 

Where you request reconsideration you are required to demonstrate that you hold the appropriate level of funds (for you and your family) at the closing balance on any one day during the one month period prior to the date of the application that is being reconsidered. However, please be aware that you will not be able to produce new additional evidence to prove/support your claim for points. Your request for reconsideration will be solely reviewed using the documents/evidence provided with the original application.  And if this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

 

Outstanding Appeals

 

If you are an applicant who has an outstanding appeal against the refusal of your application for leave to remain in the UK that was submitted before 23 July 2010 and you satisfy the below requirements, then the UKBA will withdraw their decision that gave a right of appeal.

 

This is applicable if you meet the eligibility criteria set above (and at paragraphs 1a (i - ii) of the UKBA Policy guidance) and you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is reviewed the UK Border Agency will only be using evidence you provided with your original application. Once this is satisfied, your case will be reconsidered and it will be decided whether you met the maintenance requirement at the time of your original application. If this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

 

Outstanding judicial review

 

If you are an applicant who has an outstanding judicial review against the refusal of your application for leave to remain in the UK that was submitted before 23 July 2010 and you satisfy the below requirements, then the UKBA will withdraw their decision that gave rise to the judicial review.

 

This is applicable if you can demonstrate that you are currently in the UK and you meet the eligibility criteria set above (and at paragraphs 1a (i - ii) of the UK BA Policy guidance) and you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is review the UK Border Agency will only be using evidence you provided with your original application. Once this is satisfied, your case will be reconsidered and it will be decided whether you met the maintenance requirement at the time of your original application. If this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

 

Applicants that left the UK

 

This applies to you if you are an applicant who left the UK after the refusal of your application for leave to remain which was submitted before 23 July 2010.

 

If you wish to seek a remedy to the refusal of your application, you must write to the following address:

 

PBS (AP & Others) Employment Routes Workflow Team

UK Border Agency

PO Box 3468

Sheffield S3 8WA.

 

You are required to provide:

 

a) Your Home Office Reference number

b) Your residential address

c) Details of your nearest British High Commission/Embassy

d) A certified copy of your current valid passport/travel document and biometrics card (if you have one)

e) Your email address (if possible)

 

You will be required to demonstrate that you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is review the UK Border Agency will only be using evidence you provided with your original application and thus you cannot provide additional documents in support of your claim for points. Please ensure that you do not include your passport with the reconsideration request (it will be forwarded to your country’s diplomatic post if you do include it)

 

 If the UK Border Agency finds that you meet the requirements of the policy document they will contact you directly and advise you of the next steps i.e. how to forward your passport to them.

 

Lastly, if this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

 

Overseas

 

Current entry clearance applications

 

This applies to current entry clearance applications submitted during 23 June to 22 July 2010 (inclusive). If this is applicable to you, you must show that your applications satisfied all the attributes considered with the published guidance except the maintenance requirement.  The UK Border Agency recognise that you will be unable to provide evidence of meeting the maintenance requirement on the day of the application and thus applicants will instead be required to demonstrate that they hold the appropriate amount of funds at the closing balance on any one day during the one month before the date of your application. Under such a category where grant is obtained it will confer rights and impose the conditions as specified by the Immigration Rules. You do not need to contact the post that considered your application as it will be assessed based on the information explained above.

 

Refused entry clearance applications and where Administrative review was refused

 

This applies to application for entry clearance submitted between 23 June to 22 July 2010 (inclusive) which was refused and the administrative review was dismissed.  If this applies to you and you wish to seek a remedy to the refusal of your application, you must contact the entry clearance post that assessed and issued you the original decision. You must quote their reference number and your current address. You will be however required to demonstrate that you held the appropriate amount of funds at the closing balance on any one day during the one month before the date of your application. The review of refusals will only be limited to the maintenance requirement attribute. And thus you will be unable to provide additional evidence to support your claim for points. The review will only consider the evidence provided with the initial original application. Under such a category where grant is obtained it will confer rights and impose the conditions as specified by the Immigration Rules. If your application does not meet the above requirements, the UK Border Agency state that it will fall for refusal and in such a situation if the refusal is upheld after the additional review, a letter will be sent to you with confirmation of the decision.

 

General grounds for refusal- All applicants

 

If you as the applicant fall for refusal under the General grounds for refusal in paragraphs 320-322 of the Immigration Rules, your application will be refused even if it would otherwise qualify under the terms of the new policy. The UK Border Agency has given breaking UK immigration laws and acquiring a criminal conviction since the refusal of their application as examples. Consequently the UK Border Agency will be undertaking updated checks with appropriate government agencies on all reconsiderations.

 

 

Final notes:

 

Dependants- Please note that the immigration status of any dependants in the categories covered in the policy will be considered in line with that of the principal applicant.

 

Restrictions- The policy guidance states that any restrictions that were imposed on the applicant’s ability to undertake employment will be follow the restrictions that were in place at the time of application, rather than the date of decision.

 

Right of Appeal- If a subsequent decision is made to uphold the refusal of an application; applicants will not have a right of appeal against such decisions. The reason being that it does not constitute an immigration decision as specified by the Nationality Immigration and Asylum Act 2002.

 

Deadline- Finally please note that there is a closing date to the policy guidance. Applicants have until 22 June 2011 to take advantage of the proposed remedies.

 

If you click here you can see the new policy guidance which explains how applicants can request a review of their refusal. Alternatively please contact us at Ergen and Sharif and we will happily advice you on your rights to request a review of the refusal.

Lorin Sulaiman, Ergen & Sharif