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Cite as: [2009] UKAIT 32, [2009] UKAIT 00032

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SK (Tier 1 - Transitional provision - maintenance) Republic of Korea [2009] UKAIT 00032

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 8 June 2009

Date Determination notified: 13 August 2009

Before

Senior Immigration Judge Batiste

Between

SK	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms V Laughton, instructed by Messrs Penningtons

For the Respondent: Ms J Isherwood, Presenting Officer

DETERMINATION AND REASONS

The transitional provision concerning maintenance under Tier 1 (Post Study Work), for those with previous leave under the International Graduates Scheme, only applies to applications made on or before 31 October 2008. It has not been extended and there is no legitimate expectation that it should have been.

The Issues

The Appellant is a citizen of South Korea who has obtained an order for reconsideration of the determination of Immigration Judge Scott-Baker, who on the papers dismissed the Appellant's appeal against the decision of the Respondent on 19 December 2008 to refuse to vary her leave to remain in United Kingdom.

The Appellant has been in the UK since September 2003. She had leave as a student until on 5 December 2007, when she was granted leave to remain under the International Graduates Scheme ("IGS"). The IGS and other similar schemes were replaced by a new points based scheme for Tier 1 (Post Study Work), which came into force on 30 June 2008. The provisions of the new scheme are contained in paragraphs 245V, 245Z and 245ZA of the Statement of Changes in the Immigration Rules (HC395 as amended). Paragraph 245Z(e) requires a sufficiency of funds as specified in Appendix C of the Rules. Transitional arrangements for those who were already here on the discontinued schemes such as the IGS (as opposed to initial applicants) are set out in various policy guidance documents issued by the Respondent. One such transitional arrangement relates to sufficiency of funds (generally referred to as "maintenance").

The Immigration Judge concluded that the Appellant did not fall within the terms of the transitional arrangements relating to maintenance, and did not meet the new maintenance requirements under the points based system either. Therefore on this basis she dismissed the appeal.

The Appellant's grounds for reconsideration, as argued before me by Ms Laughton, assert first that the Judge was in material error of law in concluding that the transitional arrangements on maintenance did not apply to the Appellant. Ms Laughton maintained that the transitional arrangements applied to those who were in the UK and whose last grant of leave was under the IGS and was due to expire after 30 June 2008. The Appellant fulfilled these requirements as her last leave to remain was granted under the IGS and was valid until 2 December 2008. Moreover she met all the substantive requirements of the transitional provisions, including, for the purpose of this hearing, the requirement in respect of maintenance, which demanded a single bank statement with a closing balance of not less than £800 at any time in the 30 days prior to the presentation of the application. Because she was eligible for the transitional arrangements on maintenance, she did not have to meet the normal maintenance requirement under the new scheme which would require her to have had a minimum balance of £800 throughout the three months prior to the presentation of her application, which would be the position outside the transitional arrangements. Alternatively Ms Laughton argued that the Appellant had a legitimate expectation that she would be entitled to the benefit of the transitional arrangements for maintenance. As a further alternative, Ms Laughton argued that the Respondent's decision would be in breach of the Appellant's Article 8 rights.

The Reconsideration Hearing

Before me, both Representatives agreed that the closing balance in the last bank statement of the Appellant prior to her making her application to the Respondent on 27 November 2008 was £994.45. This was the closing balance in a statement dated 13 November 2008. Both Representatives agreed further that if the transitional arrangements did apply to the Appellant then she had discharged her burden of proof with regard to maintenance and her appeal should be allowed as there was no other issue arising.

Ms Isherwood accepted that the Appellant was entitled to the benefit of transitional arrangements relating to the closure of the IGS. She had benefited from them by being able to make her application under Tier 1, without the need to satisfy the new requirements in respect of attributes and command of English, as set out in Appendices A and B of the Rules. However, Ms Isherwood maintained that the transitional arrangement for maintenance under the new points based system was separate and distinct and was expressly available only to those who had submitted their applications within the United Kingdom up to and including 31 October 2008.

Ms Laughton helpfully provided a skeleton argument and produced in her bundle of documents a guidance note from UKBA at page 34, and five e-mails (pages 26-29) from December 2008 to February 2008 between enquirers and the UKBA concerning the transitional arrangements. She maintained that these e-mails supported her submissions that the transitional arrangement relating to maintenance had continued beyond 31 October 2008 or alternatively that the Respondent had created by these documents a legitimate expectation that they would.

The Guidance Note to which she referred is from IND and was dated 2 June 2009. It stated:

"If you have a valid leave to remain under IGS or SEGS [Science and Engineering Graduates Scheme] … on or after 30 June 2008 you will be able to apply to extend your permission to stay in your existing category. You will not be required to meet the points requirement if you are applying under this transitional arrangement. You can apply under these transitional arrangements at any time from 30 June 2008. If your application is successful you will receive an extra year from the date your visa is due to expire. You will need to use application form Tier 1 (Post Study Work) …"

With regard to the e-mails, Ms Laughton in her oral submissions seemed to imply that some are specific responses to others. However I should observe at this point that I do not consider this is so. They are arranged in reverse date order. The names of the enquirers have been blanked out and cannot therefore be matched. However, if one looks at the dates of the respective e-mails and their contents, none of the five appear to relate directly to any other. They are in effect a collage of separate enquiries and responses. Ms Laughton referred me to the two e-mails on page 28 of her bundle which refer expressly to maintenance. As it is not alleged that the Appellant was herself the enquirer in question in any these e-mails, I have treated them all as being Representative of the type of correspondence being generated at the time. The first e-mail on page 28 is from an enquirer as follows:-

"4 December 2008

Thanks a lot for your response. My case falls in below the category "Tier 1 (Post Study Work) – IGS - Transitional Arrangement". And as per automated response, there are no points requirements to be met, which means not even for maintenance requirement. Am I correct in understanding this?

"Tier 1 (Posed Study Work) - IGS – Transitional Arrangement

If your leave to remain on the basis of IGS or SEGS expires before 30 June 2008, you will not be eligible for an extension under Points Based System Tier 1 (Post Study Work).

If you have valid leave to remain under IGS on or after 30 June 2008 you will be able to apply to extend your permission to stay in your existing category. You will not be required to meet the points requirement if you are applying under this transitional arrangement. You can apply under these transitional arrangements at any time from 30 June 2008. If your application is successful you will receive an extra year from the date your visa is due to expire. You will need to use application form Tier 1 (Posed Study Work), which is available on the UK Border Agency website at www.ukba.homeoffice.gov.uk/workingintheuk/tier1/poststudy""

The IND e-mail is a reply on this issue albeit to someone else who would seem to have raised a similar question. It states as follows:

"3 December 2008

Thank you for your inquiry.

When applying for Tier 1 (Post Study Work) or Tier 1 (Entrepreneur) from within United Kingdom, applicants are required to submit documents showing they have had statement of at least £800 for at least three months before applying. If the balance has dipped below £800 during the three-month period the maintenance requirement will not be met."

Ms Laughton submitted that the reference to "not being required to meet the points requirement" in the automated response cited in these e-mails (which were dated in December 2008) included maintenance and demonstrated that whatever the position might have been previously, transitional arrangements had been extended beyond 31 October 2008 to cover anybody who had extant leave under the IGS expiring after 30 June 2008. Obviously an application for extension would have to be made during the currency of the extant leave. In the alternative, she submitted that the Appellant had a legitimate expectation in the light of the ambiguity in the documents referred to above that she would be entitled to apply under the transitional arrangement on maintenance, and also that the refusal of the Appellant's application in these circumstances was in breach of the Appellant's article 8 rights.

Ms Isherwood was unaware of the specific e-mails relied upon by Ms Laughton and sought time to make further inquiries concerning whether there had been any extension of the transitional arrangements relating to maintenance and if so whether they applied to the Appellant. I agreed to give each Representative the opportunity to submit further evidence and written submissions to me and to the other party on this point by e-mail within seven days of the date of the hearing. I would then consider whether to proceed directly to promulgate a determination or whether, in the interests of justice, any further hearing would be required.

The Written Submissions

In the event I received written submissions from both Representatives. Neither sought any further oral hearing and I did not consider that one would be necessary given the comprehensiveness of the respective written submissions.

Ms Isherwood's written submissions were as follows.

"INTRODUCTION

1. On the 27^th November 2008 the appellant applied to extend her leave as a Tier 1 (Post Study Work) Migrant. The appellant was issued with a refusal letter on the 19^th December 2008. The appellant could not demonstrate that she had been in possession of the £800 for the period specified in the guidance.

2. The appellant appealed and in a matter decided "on the papers" on the 26^th March Immigration Judge Scott-Baker dismissed the appeal.

3. The appellant sought reconsideration for the following reasons:

a. The IJ erred in law in stating that the appellant's application had fallen outside of the transitional arrangements

b. The IJ erred in failing to have regard to the bank statements submitted by the appellant

c. The IJ erred in law for failing to give any or any adequate reasons for concluding that removal would not be disproportionate

4. Reconsideration was ordered by Senior Immigration Judge Spencer on the 29^th April, stating

'It is arguable that the Immigration Judge made a material error in law in concluding that the appellant fell outside the transitional arrangements for those with leave under the International Graduate Scheme (IGS)'

5. At an initial error in law hearing before Senior Immigration Judge Batiste on the 8^th June 2009, clarification was sought on what maintenance transitional provisions were applicable to applicants previously granted under IGS. There appeared some confusion over the relevance of:

a. The original transitional arrangements for maintenance, which stated:

'Up to 31 October 2008, you do not have to show you have had the funds for at least three months before your application. You must only show you have the required funds at the time you apply….. However, until 31October 2008, they do not need to cover the three month period, but they must be dated no more than a month before your application'; and

b. The transitional arrangements relating specifically to IGS applicants.

6. The original transitional arrangement for maintenance was introduced because it could not be expected that migrants would anticipate the incoming criteria. However, this transitional period ended on 31 October 2008. No applicant could make use of this transitional arrangement after 31 October 2008 under any circumstances. The Tier 1 (Post-study Work) Guidance – under the Rules the authoritative source of information as to the requirements - has always stated that IGS transitional users must satisfy the prevailing maintenance requirements. Whilst other information from the UK Border Agency may have given a contrary impression this was neither unambiguous nor plainly authoritative such as to demonstrate a policy position or create a legitimate expectation.

7. For these reasons the Respondent's position is that IJ Scott-Baker did not materially err in law in maintaining the refusal to extend the appellant's leave to remain.

Ground 1: That the appellant's case did not - as found - fall outside Transitional Arrangements

8. The central issue for this ground is whether the appellant in fact meets the Maintenance requirement to enable her to be awarded 10 points for funds under Appendix C.

9. The appellant plainly falls within the transitional provisions for a person granted leave under IGS and was accordingly awarded 75 points under the Attributes section. The refusal letter states 'Points awarded as claimed as per the transitional arrangements of the International Graduates Scheme'.

10. The appellant's position is that she did not have to meet the maintenance requirement under the IGS transitional provision because that provision removed the need to do so. It does not appear to be her case – nor, it is submitted, could it reasonably be so – that she was entitled to benefit from the original transitional provision on Maintenance. This is wholly in accordance with IJ Scott-Baker's finding that 'The appellant had made her application in November 2008 and therefore had fallen outside the transitional provisions'.

11. Additionally, the Guidance as at November 2008, handed in at the error in law hearing, makes a clear distinction between points scored in initial applications and points scored under the transitional arrangements. The distinctions are set out for Attributes, English Language Requirement. With regards to the Maintenance requirement, page 19 of the guidance, it states 'Maintenance requirement – all applications'. There are no transitional arrangements provided. This means that regardless of your application the appellant has to meet the maintenance requirement. Also, the appropriate application form reflects the same information (A1 to A28 of the Respondent's Bundle). The Maintenance section is at A22 and no transitional provisions are expressed.

12. Applying the correct guidance the IJ found that on a number of occasions in the required period the appellant's saving fell below £800.

13. The appellant seeks to rely on automated e-mails apparently from other cases to claim that under the Respondent's policy she does not have to meet the Maintenance requirement.

14. These e-mails may be ambiguous. They state:

"Tier 1 (Post Study Work) – IGS – Transitional Arrangements"

'You will not be required to meet the points requirement if you are applying under this transitional arrangements'

15. Plainly the phrase "the points requirement" is significant and open to different interpretations. The Tribunal is invited to note that the word "requirement" is singular. Furthermore the e-mail does not say "any" points requirement. As stated above, the IGS transitional arrangements are clearly expressed in both the Guidance and the application form as applying only to the Attributes test. Whilst the e-mail may be ambiguously worded it does not, on any proper reading of all available material, provide a clear declaration that the Maintenance requirement need not be met.

16. The appellant claims in the alternative the legitimate expectation of not having to meet the maintenance requirement given what is said in the e-mails. As above, no such expectation derives from considering all of the expressions of the UKBA's policy position. At best the position is unclear; at worst (for the Appellant) it is abundantly clear from the Guidance and the application form, which refer to the IGS transitional provision in respect of the Attributes test only.

17. The Respondent notes that not to require an IGS applicant to meet maintenance would create the extraordinary position of a penniless applicant being entitled to remain if all other requirements were met.

18. For the Tribunal's information, the UKBA has amended the automatic e-mail with effect from 19 May 2009. The revised version is attached. This makes it clear that maintenance does need to be met. Lest it be suggested that this represents a change of position, it is noted that the Guidance has not been amended at the same time.

Ground 2 – Failing to have regard to the bank statements submitted by the appellant

19. It is plain from the statements in the bundle that the Appellant did not hold the required £800 throughout the three month period prior to the application. Thus any failure to have regard to those statements could not be material.

Ground 3 – Failing to give any or any adequate reasons for concluding that removal would not be disproportionate

20. It is acknowledged that the IJ's reasoning in dismissing the appeal under Article 8 is wholly deficient. It is in no way satisfactory to say that simple failure to meet the Rules is dispositive of Article 8.

21. The Tribunal is asked to consider whether this is on any reading a case that was bound to be dismissed under Article 8. The Appellant's protected Article 8(1) private life has been formed when her immigration status was that of a person expected to leave at the end of her stay, first as a student then under the International Graduate Scheme. Indeed the instant application was on a basis with a strict time limit. It is difficult to see that legitimate interference with private life formed in such circumstances (based on the Tribunal's acceptance of the Respondent's case on Ground 1) can possibly have consequences of such gravity as to engage Article 8 notwithstanding what is said in AG (Eritrea).

22. If further consideration of Article 8 is required, the Respondent also asks that the submissions above in respect of the position on needing to meet Maintenance requirements are considered. The Appellant's grounds allege that the Respondent has "misled" the Appellant into believing that this was not so: this is denied.

23. It is for these reasons that the IJ did not materially err in law in dismissing the appeal. "

Ms Laughton replied to these written submissions in the following terms.

"INTRODUCTION

1. The Appellant is a citizen of South Korea. She appeared before SIJ Batiste on 8^th June 2009 for a reconsideration hearing of the decision of IJ Scott-Baker dated 26^th March 2009 refusing the Appellant's appeal against a refusal to vary leave to remain as a Tier 1 (Post Study Work) Migrant dated 19^th December 2008. At the conclusion of the hearing, SIJ Batiste gave either side 7 days to make further submissions and lodge any further evidence in relation to the existence of any policy relating to the Appellant's case. The Respondent's submissions were received by the Appellant on 15^th June 2008. These submissions have been prepared in response on the next working day.

2. It should be noted that the Respondent's submissions are wider than merely considering the existence of the policy. The Appellant relies upon all of the arguments submitted in the skeleton argument at the reconsideration hearing, including the fact that as the Respondent had not submitted a reply under Rule 30, he should be prevented from asserting that there was no material error of law.

3. The Appellant does not intend to rehearse the arguments contained within the skeleton argument and merely responds to the specific points raised by the Respondent in the written submissions.

GROUND 1 – The IJ erred in law in stating that the Appellant's application had fallen outside of the transitional arrangements.

4. The Appellant submitted clear evidence that transitional arrangements in place meant that as she had leave to remain under the IGS, she did not have to satisfy the points based requirement. The Transitional Arrangements described in guidance issued by the UK Border Agency dated 28^th January 2009 state (page 34 of AB):

"Tier 1 (Post Study Work) – IGS – Transitional Arrangement

If your leave to remain on the basis of IGS or SEGS expired before 30^th June 2008, you will not be eligible to apply for an extension under Points Based System Tier 1 (Post Study Work).

If you have valid leave to remain under IGS or SEGS on or after 30^th June 2008, you will be able to apply to extend your permission to stay in your existing category. You will not be required to meet the points requirement if you are applying under this transitional arrangement.'

5. The Respondent asserts that these e mails may be ambiguous. It is difficult to see how there is any ambiguity. The maintenance requirements are part of the points based system. There was no suggestion that this policy only related to attributes and English language requirements. If maintenance was excluded from the transitional arrangements, one would expect this to be stated. Further, the Respondent has failed to comment upon the fact that there was a further email dated 8 December 2008 by Wayne Fairweather of Immigration Group, UK Border Agency in a response to an enquiry as to whether an individual who applied under the transitional arrangements would need to meet the maintenance points requirement under Tier 1 (page 27 of AB);

"If you have valid leave to remain under IGS or SEGS on or after 30^th June 2008, you will be able to apply to extend your permission to stay in your existing category. You will not be required to meet the points requirement if you are applying under this transitional arrangement. You can apply at anytime under this transitional arrangement from 30^th June 2008. If your application is successful you will receive an extra year from the date your visa is due to expire. You will need to use application form Tier 1 (Post Study Work), which is available…

If your application is successful you will be granted further leave to remain, up to a combined total of two years in your existing category and the Post Study Work category, during which time you will be free to seek employment without having a sponsor…"

6. It should be noted that this response was in direct response to a query as to whether an individual had to fulfil the maintenance requirements of the points based system (see page 28 and 26 of AB). It is respectfully submitted that the position could not be any clearer. It is therefore clear that those applying under the transitional arrangements (such as the Appellant) did not need to satisfy the points based requirements, including the points relating to maintenance.

7 It is respectfully submitted that the Respondent has not placed any evidence before the court to counteract such a clear expression of policy. The document submitted with the Respondent's submissions entitled auto response message is dated 19^th May 2009 and therefore post dates the date of application and refusal. The fact that the policy now states that the Appellant must still meet the maintenance requirement is irrelevant, as it was not in force at the relevant time. If anything, the fact that the Respondent has drastically changed the wording leads one to an irresistible inference that it constitutes a change in policy.

8. In the alternative the Appellant relies upon the arguments regarding legitimate expectation contained in paragraph 15 to 21 of the skeleton argument.

Ground 3 - The IJ erred in law for failing to give any or any adequate reasons for concluding that removal would not be disproportionate

9. The Respondent accepts that the IJ erred in law in relation to her consideration under Article 8, but asserts that the ground is bound to fail. The Appellant asserts that the error is clearly material and would not be bound to fail and relies upon paragraphs 23 to 34 of the skeleton argument. In response to the allegation that the Appellant was expected to leave at the conclusion of her student visa and/or IGS, the whole point of IGS and the subsequent Tier 1 system was to attract the most attractive candidates to the UK and encourage then to remain.

Conclusion

10. The learned SIJ is respectfully requested to allow the appeal outright."

The Context of the Rule Changes in June 2008 and the associated Policy Guidance of the Respondent

In considering these submissions, I have first assessed the context of the material rule changes introduced in June 2008. Prior to the change, the Rules provided for a variety of schemes for which the requirements to be satisfied were often expressed in general terms which were subject to interpretation and hence to inconsistency in application. The new points based system provides for 5 Tiers in all, of which Tier 1 replaced the IGS, the Science and Engineering Graduates Scheme (SEGS) and the Fresh Talent: Working In Scotland Scheme (FT:WISS). These schemes were discontinued in June 2008 and the new points based system was introduced in their place. There were additional requirements to be satisfied by applicants, such as attributes and command of English. A further very important change was that applications would henceforth be judged objectively on the basis of clearly specified criteria awarding points in specific categories. Successful candidates had to demonstrate their entitlement to the required number of points.

At all times a distinction was drawn between initial applicants for Tier 1 Post Study Work and those applicants who were already in IGS (SEGS) and FT:WISS. This was because it was understood by the UKBA that changes of this magnitude could produce material unfairness without appropriate arrangements to smooth out the transition. Some of those transitional arrangements related to the consequences of withdrawal of the old schemes and the switch to a different points based system. Others related to the new objective methods of evaluation of matters such as maintenance under Appendix C.

The "guidance" referred to in Appendix C is a reference to the UKBA Policy Guidance contained in the document entitled "Tier 1 (Post-Study Work) of the Points-Based System – Policy Guidance". This Policy Guidance has evolved. The first version (version 06/08) was issued with the introduction of the scheme on 30 June 2008. The second version (version 09/08) was issued on 11 September 2008 and made changes to the section entitled "Tier 1 (Post-study Work): Maintenance". It included a new page at the end in a different typeface headed "Transitional arrangements for maintenance (funds)". This is the version in force when the Appellant made her application to the Respondent on 25 November 2008. Given the limited nature of the issues before me, I shall now focus on the issue of maintenance for applicants whose previous leave was under the IGS. However, I should briefly record for the sake of completeness that further versions were published later and that there were different transitional provisions for applicants whose previous leave was under the IGS to those whose previous leave was under the FT:WISS.

The Policy Guidance for those applying after 31 October 2008 required as follows.

"89. One of the requirements of Tier 1 is that an applicant coming to the UK must be able to support himself/herself for the entire duration of his/her stay in the UK without use of public funds (benefits provided by the state). An applicant who is unable to support himself/herself could face financial hardship because he/she will not have access to most state benefits.

90. In order to qualify for entry clearance, or leave to remain under Tier 1 an applicant must show that he/she has enough money to support himself/herself. The maintenance requirements are detailed below:

Applicants outside the UK seeking entry clearance must have at least £2,800 of personal savings which must have been held for at least three months prior to the date of application.

Applicants in the UK seeking further leave to remain must have at least £800 of personal savings which must have been held for at least three months prior to the date of application.

91…

92…

93. The evidence to support personal savings for at least three months must be original, on the official letter-headed paper or stationery of the organisation and have the office stamp of that organisation. It must have been issued by an authorised official of that organisation.

94. Evidence must be in the form of cash funds. Other accounts or financial instruments such as shares, bonds, pension funds etc, regardless of notice period are not acceptable.

95. The evidence of maintenance must be of cash funds in the bank (this includes savings accounts and current accounts even when notice must be given), loan or official financial or government sponsorship available to the applicant. Other accounts of financial instruments such as shares, bonds, pensions etc., regardless of notice period, are not acceptable.

96. Only the following specified documents will be accepted as evidence of this requirement:

(i) Personal bank or building society statements covering the three consecutive months.

The most recent statement must be dated no more than one calendar month before the date of application.

The personal bank or building society statements should clearly show:

The applicant's name;

The account number;

The date of the statement;

The financial institution's name and logo;

Transactions covering the three month period;

That there are enough funds present in the account (the balance must always be at least £2,800 or £800, as appropriate).

Ad hoc bank statements printed on the bank's letterhead are admissible as evidence (this excludes min-statements from cash points).

… [sets out guidance on electronic bank statements]

We will not accept statements which show the balance in the account on a particular day as these documents do not show that the applicant holds enough funds for the full period needed."

For those applying before 1 November 2008, the Policy Guidance was essentially in similar terms save that the version of 11 September 2008 made important additions at the beginning and at the end. At the beginning it stated:

"Tier 1 (Post-Study Work) of the points-based system Policy Guidance.

This document contains guidance to [sic] our policy on Tier 1 (Post-Study Work) of the points based system to work in the United Kingdom.

Maintenance (funds) requirement: We have made transitional arrangements for proving maintenance (funds) for applicants and their family members who make applications up to and including 31 October 2008. You can find details of these on the last page of this document."

The last page states as follows.

"Transitional arrangements for maintenance (funds)

Normally, when applying to Tier 1 (Post-Study Work) from within the United Kingdom, you will have to show that you have enough funds, by sending documentation showing you have had savings of at least £800 for at least three months before applying.

Because this is a new requirement and it may be difficult to prove this immediately, we have put transitional arrangements in place for applicants and their family members submitting their applications within the United Kingdom up to and including 31 October 2008.

Up to 31 October 2008, you do not have to show you have had the funds for at least three months before your application. You must only show you have the required funds at the time you apply. The types of documentary evidence you need to send to support your application are as described in this document. However, until 31 October 2008, they do not need to cover the three-month period, but they must be dated no more than a month before your application.

For example, if you apply under Tier 1 (Post-Study Work) on 12 July, a single bank statement with a closing balance of £800 dated between 12 June and 12 July 2008 will meet the maintenance requirements. A bank statement dated before 12 June 2008 will not be acceptable."

This is the context against which I now assess the submissions made to me.

The Extent of the Transitional Arrangement for Maintenance

It is common ground between the representatives that the method of evaluating the adequacy of maintenance was changed from the general assessment of sufficiency to a very specific requirement of having a minimum of £800 in a bank account for the three months prior to the making of the application. Obviously there needed to be a transitional arrangement for this as potential applicants would need three months notice of the new test so that they could organise their affairs accordingly.

The Policy Guidance cited above in my judgement makes unambiguously clear what the transitional arrangement with regard to maintenance was; that it will only apply to applications submitted to the Respondent by 31 October 2008; why it was structured in the way it was; and what the requirements are for applications made on or after 1 November 2008. I would observe that the change in the method of evaluating the adequacy of maintenance introduced in June 2008 is not inherently about the points based system as such, but rather about the objectivity of the evidence required to show that an applicant has met the maintenance requirement. By this I mean that the change in the method of evaluating the adequacy of maintenance is in substance distinct from the points based system itself. It could have been introduced into the old IGS without any points based system being involved at all.

Independently of the question of maintenance, the withdrawal of the IGS on 30 June 2008 required its own transitional arrangement whereby those who were currently in the UK with leave under the scheme but whose leave would not expire prior to 30 June 2008 could nevertheless thereafter be enabled to make a valid in-country application in the same category even though the IGS itself had been withdrawn and replaced by the Tier 1 Post-Study Work scheme, set up on a different basis and with additional requirements as to attributes and command of English.

Accordingly, those who made inquiries to the UKBA specifically about the IGS scheme would be informed, not least by the automated response to an e-mail on the subject, of the transitional arrangement relating to it. The reference in such e-mails to "you will not be required to meet the points requirement if you are applying under this [my emphasis] transitional arrangement" was directed at the issues relating specifically to the structural transition from the IGS to the points based system as Ms Isherwood has described, ie as to attributes and command of English. Those who enquired about maintenance would be advised of the separate and distinct transitional arrangement relating to maintenance.

Mrs Laughton has argued that in December 2008 (i.e. after the 31 October 2008 deadline) people asking UKBA about maintenance specifically were given only the advice relating to the IGS. However as I have already observed, none of the five e-mails supplied to me appears to relate directly to any other. They are simply a collage arranged in reverse date order. The only two e-mails from enquirers asking expressly about maintenance are those dated 9 December (page 26) and 4 December (page 28). The reply from Mr Merryweather (page 27) upon which Ms Laughton places much reliance, is dated 8 December. It cannot therefore be a reply to the enquiry of 9 December. Nor given the content and terminology used in the respective e-mails could it relate to the enquiry of 4 December. The e-mail from UKBA dated 3 December (page 28) is the response one would properly expect to a post 31 October enquiry about maintenance. I have no reason to suppose that this would not be the standard response to people making similar enquiries. It is wholly unambiguous in its statement that after 31 October 2008 savings of at least £800 had to be demonstrated for at least three months before applying i.e. the then normal arrangement.

There is therefore nothing in any of the documents I have been shown to suggest that the transitional arrangement relating to maintenance was ever extended beyond 31 October 2008; or that there was any basis in logic or fairness for doing s0; or that the UKBA gave inconsistent or misleading answers to people who made specific enquiries about the transitional arrangement for maintenance. In reaching this conclusion I have taken into account that those making an unspecific enquiry without mentioning maintenance about the IGS transitional arrangement only will have received an automated response that does not address maintenance at all. As I have said, the actual method specified for evaluating maintenance is separate and distinct from the points based system. I do not consider that in context there is material ambiguity in the UKBA documentation. If anyone was in doubt there was a simple system for contacting the UKBA for clarification, as the e-mails on page 28 of the Appellant's bundle dated 3 December 2008 demonstrates.

On this basis I now consider the various specific issues raised relating to this appeal.

Lack of Respondent's Reply

Ms Laughton has submitted that the Respondent failed to provide a Reply to the grounds of application and that Ms Isherwood's submissions were wider than merely considering the existence of the policy. Therefore Ms Laughton maintains that the Respondent should be prevented from asserting that there was no material error of law by the Immigration Judge. I disagree. Ms Laughton has cited the case of MB (Rule 30 Procedure Rules) DRC [2008] UKAIT 00088. However this case provides that Rule 30 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 should be read in conjunction with Rule 31(4) (c). This has the effect that if there is a Reply I must take it into account but if there is no Reply it is a matter which I may take into account in the light of all facts in the case.

I have applied this guidance. There was indeed no Reply by the Respondent. However, Ms Isherwood's submissions with regard to the Respondent's policy, which includes the transitional arrangement as to maintenance, are in effect that the Immigration Judge got it right and she did not err materially in law. There is nothing surprising in that. Ms Isherwood also supplied information in support of her submissions, which I have found useful in understanding the overall context against which this appeal must be decided. Thus, whilst I have taken into account the fact that there is no Reply, I consider that the interests of justice require me to take into account all facts and submissions provided to me in this case. I should add that Ms Isherwood has conceded that the Judge's analysis of article 8 is inadequate but presumably Ms Laughton does not object to that. I shall come back to this issue later.

Maintenance Requirement under the Rules and the Respondent's Policy

I have already described the context and extent of the transitional arrangement relating to maintenance. I have recorded the agreement of both Representatives that were the Appellant eligible to fall within its scope, she would be entitled to succeed in her appeal, because the closing balance in her last bank statement prior to making her application (dated 13 November 2008) was £994.45. However, the unfortunate reality is that the Appellant did not submit her application until after 31 October 2008. By the time she did submit it, on 27 November 2008, the transitional arrangement on maintenance was no longer open to her, for the reasons I have already described above. She therefore had to satisfy what was then and is now the normal rule, which requires a minimum bank balance of £800 for three months ending in the month prior to the application.

Ms Laughton has submitted in her skeleton argument that the Judge failed to have regard to the bank statements submitted by the Appellant. However this does not avail the Appellant. I have looked at all the bank statements referred to by Ms Laughton and the Appellant has not maintained for the whole period of three months ending in the month of her application a minimum balance of £800.

Thus I conclude that, even if there were any error of law by the Immigration Judge it is not material because the Appellant was unable to satisfy the maintenance requirement due to the fact that at various times within the relevant three month period the balance on her bank account fell below £800. Thus, notwithstanding Ms Laughton's various submissions to the contrary, I conclude that there is no material error of law in the Judge's dismissal of the Appellant's appeal under the Immigration Rules.

Legitimate Expectation

Ms Laughton then offered the alternative submission that even if the Appellant did not come within the terms of the transitional arrangement relating to maintenance, she had a legitimate expectation that she would as a consequence of the information supplied by the Respondent. She has cited various cases in support of her submission, which I have taken into account. I accept her submission that the Tribunal has the jurisdiction to challenge an immigration decision on the basis of the public law concept of a legitimate expectation, which falls within the ground of appeal that the Respondent's decision is "otherwise not in accordance with the law".

Of particular clarity and brevity as to the approach to be adopted in assessing this concept is the guidance offered by Schiemann LJ in R v Newham Borough Council ex parte Bibi [2003] 1 WLR 237 where he states as follows.

"In all legitimate expectation cases, whether the substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."

Applying these principles I conclude, for the reasons given above, first that the Respondent has, neither by practice nor promise, ever committed himself to extending the transitional arrangement relating to maintenance beyond 31 October 2008. I have not found within the documents supplied to me any evidence that he has expressly or impliedly given a contrary impression. I have no reason to suppose that the reply given by Ms Bennett of UKBA in her e-mail of 3 December 2008 was not the standard response given by UKBA to anyone inquiring about the transitional arrangement on maintenance. It follows therefore that I also conclude that the Respondent has not acted unlawfully in relation to his commitments on the subject. Thus there is no basis for the Tribunal to intervene on the basis of legitimate expectation, again notwithstanding the contrary submissions made by Ms Laughton.

Article 8

The final issue relates to Article 8. Ms Laughton has submitted that the Immigration Judge's assessment was inadequate to the extent that it represented a material error of law and should be set aside. The Judge dealt with this in one paragraph only and in the following terms.

"7. So far as Article 8 is concerned, I accept that during the Appellant's time in the United Kingdom she has developed a private life in the UK, but there was no evidence before me that she had any family life here. However, I am not satisfied that the decision for the Appellant to leave the United Kingdom would be disproportionate on the evidence that is currently before me as she cannot come within the terms of the Immigration Rules."

Ms Isherwood agreed that this was an inadequate and mistaken approach that cannot be sustained. I agree also. The mere fact that the application cannot come within the terms of the Immigration Rules is not in itself a basis for concluding that removal would be proportionate under Article 8. However there is no dispute concerning the evidence relating to the Appellant's private and family life in the UK and I am therefore able to reach my own conclusion in substitution for that of the Judge.

Ms Laughton submitted in her skeleton argument that the Appellant had established a private life in the UK, though not any family life. It was a strong private life which can be summarised in the following terms. The Appellant arrived in the UK in September 2003 and has lived here for nearly 6 years, always in accordance with the requirements of immigration law. She has obtained a Bachelor of Arts degree in Fashion Photography. Since her graduation she has been working as a professional photographer for various magazines and companies. She has built up excellent contacts within the fashion industry in the UK. She is now involved as a co-founder and production manager in the launch of her new magazine, which will create jobs for 24 people in the UK. She is an essential part of the venture.

Ms Laughton submitted further that the removal of the Appellant would constitute interference with her private life and would have consequences of such gravity as potentially to engage Article 8, where the test for engagement is not a particularly high one. Whilst removal would be for a legitimate aim and in accordance with the law, it would not be proportionate. The interference is not necessary. The reason the Appellant was refused under the Immigration Rules was because she had not maintained a constant £800 in her account for the three months prior to her application. The cause of this was that the Appellant genuinely believed she did not need to do so as she would be applying under the transitional arrangement. This belief was based upon a genuine misunderstanding. If she had been aware of the necessity to maintain the minimum balance of £800 she could have done so. She will not be reliant upon public funds or face financial hardship. She has always been able to maintain herself and could continue to do so as well as employing a number of others. If removed she would not be eligible to reapply under the scheme because it is now more than 12 months since she passed her degree. This means that she would be unable to return to the UK and the contacts she has built up in the fashion industry would be lost and the magazine she is establishing would have to be abandoned with the loss of jobs for others.

Ms Isherwood on the other hand has argued that this is a case that would be bound to be dismissed under Article 8. The Appellant's private life was established in the UK when her immigration status was that of a person expected to leave at the end of her stay. It was difficult to see in those circumstances that legitimate interference with her private life could have consequences of such gravity as to engage Article 8, and in the alternative, if it did, removal would be proportionate. There was a strong policy imperative in the interests of consistency and fairness in the move to objectivity in assessing immigration claims. It should not be eroded. If the Appellant had believed that she was entitled to the benefit of the transitional arrangement on maintenance after 31 October 2008 she was mistaken and should not benefit from her own mistake. She had had plenty of time to organise her affairs to meet the new requirement.

Having carefully considered these submissions I have concluded as follows. I accept that in the six years the Appellant has been in the UK, she has always been within the law and has never been a burden on the state. She has established a private life in the UK, both in terms of pursuing her education to graduate level and in laying the foundations for a future career. She is currently an integral part of a new fashion magazine, which reflects the contacts she has made and her own personal skills. She anticipates that the magazine will employ 24 people. She says all this will be lost if she is removed. I do not accept this latter point. If a business is viable, few individuals are truly indispensable. Moreover, the Appellant's skills and qualifications are portable and can found a career for her in her home country in South Korea, which has a powerful and growing economy.

I accept that the Appellant may have made a genuine mistake about whether she would qualify for the transitional arrangement on maintenance, probably because she did not properly address her mind to the issue or make proper enquiries. That however is her responsibility.

I have concluded for the reasons stated above that the Respondent did not do anything that could give rise to any legitimate expectation that she would so qualify. I accept that there is a strong policy element for the Respondent in the interests of consistency and fairness in making a clean break, subject to fair transitional arrangements, from the old system of subjective and inconsistent evaluation of maintenance. Indeed the past delays in decision making and the large body of jurisprudence that has built up around this subject in recent years demonstrates the pitfalls of subjectivity in assessing claims. The reality is that wherever the dividing line is drawn some people will fall on the wrong side of it. It may be that the Appellant could have organised her affairs to meet the normal £800 for three months requirement but it is due to her error that she did not do so.

On the basis of this analysis, I have concluded for the purposes of the step by step approach to Article 8, that the Appellant has established a private life in the UK and that the Respondent's decision would result in interference with it. That interference would have consequences of such gravity for the Appellant as potentially to engage Article 8. However removal would be for a legitimate aim and would be in accordance with the law. That leaves the question of proportionality.

In Huang v SSHD [2007] UKHL 11 the House of Lords clarified the approach to be adopted when assessing proportionality in the following terms.

19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality

"must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage" (see para 20).

If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.

20. In an Article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.

This approach is expressed in terms of family life but applies also to private life. I have to balance the interests of society with those of this particular individual and those with whom she enjoys her private life, on the specific facts of this case. Obviously the interests of society are to maintain a firm and fair immigration system expressed in terms of the Immigration Rules and the policies relating thereto as I have described above. I must and do give due deference to this. However, I am also conscious that the Appellant may have been able to satisfy those Rules and policies but for a genuine misunderstanding on her part.

This Appellant is a person whose private life has for 6 years been structured in terms of education, contacts and business opportunities from being legally in the UK. Thus far she has been in the UK only with limited leave. She stands to lose the fruits of her present contacts and business opportunities if removed, even though of course she would take her skills with her and will have the opportunity to build a new career in her own country. The Appellant would in my assessment be an asset in whatever society she settled.

I have decided on balance and on the particular facts of this case that it would not be disproportionate for the Appellant to be removed. Therefore, I dismiss her appeal on all grounds.

DECISION

The Immigration Judge made no material error of law in dismissing the Appellant's appeal under the Immigration Rules and on the basis that the Respondent had acted in accordance with the law. However the Judge did materially err in law in her assessment of the Appellant's Article 8 appeal, and the following decision is accordingly substituted:

"The Appellant's appeal against the Respondent's decision is dismissed under Article 8."

Signed Dated 30 July 2009

Senior Immigration Judge Batiste

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Heard at Procession House

On 8 June 2009

Before

Senior Immigration Judge Batiste

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

FUNDING DETERMINATION

The Tribunal is satisfied that, at the time the Appellant made the section 103A application and for the reasons indicated in the Senior Immigration Judge's order for reconsideration, there was a significant prospect that the appeal would be allowed upon reconsideration. It orders that the Appellant's costs in respect of the application for reconsideration, the preparation for reconsideration and the reconsideration are to be paid out of the relevant fund, as defined in Rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005

Signed Dated 30 July 2009

Senior Immigration Judge Batiste