IMPORTANT PSW maintenance appeal, will be bad news for some

[PaperPusher]

Please see the following case:

NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025

i. The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.

v. Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.

vi. However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.

The case is also on the AIT website as a reported determination.

http://www.ait.gov.uk/CaseLaw/caseLaw.htm

See also the Free Movement blog:

New PBS decision: not good news

[jack199]

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

[vinata]

I think Jack199 is right. To win the appeal an applicant needs to show he/she had the required level of funds at the time of application, but because of the misunderstanding of the law he/she had forgotten to attach the additional evidence to the application. If this is the case, then it is likely the appeal could be allowed, but if the evidence refers to any other period, then the chances of success are very small.

However, the requirement that no new evidence can be included in the appeal other than that provided with the original application, is certainly new. At least I don't know anything about that. But I know for sure, judges do accept additional evidence in courts at the moment. However, it may not be for long....

[parham.r]

Well. As the others have said it is necessary to provide the tribunal with evidence that the appellant had possessed £800 prior to the date of application.

If this right is withdrawn from the potential appellants, then presumably there would not be any meaningful appeal right.

[Gururaj]

I agree with Vinata and Jack. If the applicant forgets to send in the evidence during the application and later shows the evidence, he would be allowed during his appeal (from the cases that have been posted in the immigration boards forum)

Only thing that could make the grounds bit scary is, if any one could let us know whether this law quoted which is 'However, until s.85A of the 2002 Act is brought into force'
is been applied or not at the moment???

Can any member throw some light whether the 85A act is brought under application for the current appeal cases. I believe it has not been put under force as it clearly states that if it is brought into force then an appellant cannot put forward new evidence and this clearly means that it is not in the law yet....Am i right???

Guys please add your thoughts...

[vinata]

Hi Guru,

Don't worry too much about it. I have read the attached determination very carefully and understood that appelants can introduce additional evidence, however it can only be taken into account if it relates to the period which covers 3 month period immediately prior to the date of application.

If you can produce such the evidence, then you have nothing to worry about. Quote 3 specifically stipulates that no new evidence would be allowed unless it relates to the 3 month period immediately prior to the date of application. Read the full case determination and it will become more clear.

[Gururaj]

Hi Guru,

Don't worry too much about it. I have read the attached determination very carefully and understood that appelants can introduce additional evidence, however it can only be taken into account if it relates to the period which covers 3 month period immediately prior to the date of application.

If you can produce such the evidence, then you have nothing to worry about. Quote 3 specifically stipulates that no new evidence would be allowed unless it relates to the 3 month period immediately prior to the date of application. Read the full case determination and it will become more clear.

Hi Vinata,
That seems to be the case. I was doing the same for the past couple of hours and trying to understand the law. It definitely puts me out of track by linking it to other regulations(like a complex flow chart)...

Well the bottom line is, it is okay to provide new evidence if it covers three months prior to the application date.

Thanks a lot Vinata for your prompt response, much appreciated

One more thing that confuses me is, should I have to take legal advice (like taking a solicitor with me for my appeal). I feel I have the knowledge of my case and all the evidence but at the same time I am bit scared that I am leaving some aspect by not hiring a solicitor. Vinata I think you advised me earlier to hire one to have peace of mind. Do you still stick to it... What kind of help do they provide???? Anyone??

Cheers

[jack199]

Hi Guru,

Don't worry too much about it. I have read the attached determination very carefully and understood that appelants can introduce additional evidence, however it can only be taken into account if it relates to the period which covers 3 month period immediately prior to the date of application.

If you can produce such the evidence, then you have nothing to worry about. Quote 3 specifically stipulates that no new evidence would be allowed unless it relates to the 3 month period immediately prior to the date of application. Read the full case determination and it will become more clear.

Hi Vinata,
That seems to be the case. I was doing the same for the past couple of hours and trying to understand the law. It definitely puts me out of track by linking it to other regulations(like a complex flow chart)...

Well the bottom line is, it is okay to provide new evidence if it covers three months prior to the application date.

Thanks a lot Vinata for your prompt response, much appreciated

One more thing that confuses me is, should I have to take legal advice (like taking a solicitor with me for my appeal). I feel I have the knowledge of my case and all the evidence but at the same time I am bit scared that I am leaving some aspect by not hiring a solicitor. Vinata I think you advised me earlier to hire one to have peace of mind. Do you still stick to it... What kind of help do they provide???? Anyone??

Cheers

I would still advise you to get a legal rep, it helps a lot. BUT if your case is straight forward and you know 100% that you will win the appeal then you can represent yourself. BUT i must say that hiring a rep is a good idea.... Rest stands on you.

Hope that helps

[Gururaj]

Hi Guru,

Don't worry too much about it. I have read the attached determination very carefully and understood that appelants can introduce additional evidence, however it can only be taken into account if it relates to the period which covers 3 month period immediately prior to the date of application.

If you can produce such the evidence, then you have nothing to worry about. Quote 3 specifically stipulates that no new evidence would be allowed unless it relates to the 3 month period immediately prior to the date of application. Read the full case determination and it will become more clear.

Hi Vinata,
That seems to be the case. I was doing the same for the past couple of hours and trying to understand the law. It definitely puts me out of track by linking it to other regulations(like a complex flow chart)...

Well the bottom line is, it is okay to provide new evidence if it covers three months prior to the application date.

Thanks a lot Vinata for your prompt response, much appreciated

One more thing that confuses me is, should I have to take legal advice (like taking a solicitor with me for my appeal). I feel I have the knowledge of my case and all the evidence but at the same time I am bit scared that I am leaving some aspect by not hiring a solicitor. Vinata I think you advised me earlier to hire one to have peace of mind. Do you still stick to it... What kind of help do they provide???? Anyone??

Cheers

I would still advise you to get a legal rep, it helps a lot. BUT if your case is straight forward and you know 100% that you will win the appeal then you can represent yourself. BUT i must say that hiring a rep is a good idea.... Rest stands on you.

Hope that helps

Thanks Jack!
Could you please let me know a little of your court experience. I have tried to look for it in your posts and for some time I was lost in the numerous posts you have posted. You have indeed helped many in this group and I'm sure others would follow (Atleast i would). If you could lead me to the link it would be good enough.

How was it and would it be possible for me to talk to you once before going for my hearing which is in another 2 weeks time. I am sending you a pm and would request you to respond.

Thank You
Cheers

[vinata]

Guys,

Pls have a look at the following determination.

http://www.ait.gov.uk/Public/Unreported/IA203562008.doc

There is a clear argument where the HO tried to argue that no new evidence should be allowed to be introduced at the hearing date other than that submitted with the original application, and that the role of the AIT was to review only as it was not the original decision maker.

Senior Judge dismissed this agrument by stipulating that if the additional evidence covers the 3 month period immediately prior to the date of application, then such the evidence should be taken into consideration, as in this case the appelant doesn't change his original application in any way, but simply provides evidence which confirms he satisfied the immigration rules at the time of original application.

However, this argument is valid only if one can provide evidence which covers the period in question, and the judge explicitly stipulated that had the new evidence covered the period outside the 3 month immediately prior to the date of application, then the appeal would have been dismissed.

[Gururaj]

This is indeed quite good information Vinata... Thanks a lot for digging it out and posting it in the forum. Much appreciated.... Hope all the appeals go successfully..

Thanks again
Cheers

[lapppt]

Guys,

Pls have a look at the following determination.

http://www.ait.gov.uk/Public/Unreported/IA203562008.doc

There is a clear argument where the HO tried to argue that no new evidence should be allowed to be introduced at the hearing date other than that submitted with the original application, and that the role of the AIT was to review only as it was not the original decision maker.

Senior Judge dismissed this agrument by stipulating that if the additional evidence covers the 3 month period immediately prior to the date of application, then such the evidence should be taken into consideration, as in this case the appelant doesn't change his original application in any way, but simply provides evidence which confirms he satisfied the immigration rules at the time of original application.

However, this argument is valid only if one can provide evidence which covers the period in question, and the judge explicitly stipulated that had the new evidence covered the period outside the 3 month immediately prior to the date of application, then the appeal would have been dismissed.

So what are the additional evidence which covers the 3 month period immediately prior to the date of application? Could that be wage slips, letters from employers?

[Gururaj]

So what are the additional evidence which covers the 3 month period immediately prior to the date of application? Could that be wage slips, letters from employers?[/quote]

I believe, what I understand from Vinatas comment to additional statements is completely regarding maintenance funds
1) Could be savings statements (which were not attached to the original application).
2) Any other accounts held and which were not used for the application process.
3) Could be joint account and if you are lucky any overseas accounts (Plz cross check overseas accounts as I am not completely sure. However few people in this forum have won cases on the basis of overseas bank statements).
4) Missing statements which could not be sent with the application coz of postal delay or any other circumstances and the fact remains that you did have money during that time.

Other letters might not be considered as new evidence. It strictly remains the same that any new evidence would be accepted only if it pertains to funds 3 months prior to the application date and not any other dates.

I hope this helps.

Cheers

[sandeep123]

hi jack,

this post confused me little. please clarify. In my case HO said u failed to submit the proof of evidence for fund maintenance.

they never send me back my bank statements which gives a doubt that might they lost it. Now I am just afraid if they say u havent sent any statement than what i gonna say.

please suggest. Although i have new set of statements now and also letter from bank.

thanks
sandeep

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

[jack199]

You have got nothing to lose. If they have lost it thats their problem. I believe that you must have taken photocipies of what you sent to HO. If you have then thats great if you haven't then this is not a big issue.

At the hearing as long as you can prove that you had the required money for the time in question and you have prove that you had those funds readily available to you, you whould be fine.

But i do need to know more about what the rejection letter say, does it says on the lines of "that you had inadequate funds or alongs the lines of that your balance dropped etc etc". Dont worry if they haven't sent you the bank statement back then they must have kept it as a kind of an evidence which they might use at the hearing. BUT BUT if you can prove that you had the required funds then you have NOTHING TO LOSE MATE.

Hope that helps

[k218]

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

hello guys, i want to share my psw visa exp. it was me n my partner application and funds needed to show was £800 for myslf and £533 for my partner(dependent) but our college ppl told to show only £800 and we filed in oct but got my visa today with refusal bcoz of insufficient funds. i am reallly worried but i spoken to one lawyer n they said for 2 options either oral hearing in front of judge or paper hearing. i m goin for paper hearing. is my decision right? plz help wat shud i do as i have only 10 days to appeal. thnz

[k218]

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

hello guys, i want to share my psw visa exp. it was me n my partner application and funds needed to show was £800 for myslf and £533 for my partner(dependent) but our college ppl told to show only £800 and we filed in oct but got my visa today with refusal bcoz of insufficient funds. i am reallly worried but i spoken to one lawyer n they said for 2 options either oral hearing in front of judge or paper hearing. i m goin for paper hearing. is my decision right? plz help wat shud i do as i have only 10 days to appeal. thnz

oh i forgot to mention now i am showing my insurance policy as hard cash money of that time as we were not aware to show another £533 bcoz of laack of knowledge .

[Gururaj]

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

hello guys, i want to share my psw visa exp. it was me n my partner application and funds needed to show was £800 for myslf and £533 for my partner(dependent) but our college ppl told to show only £800 and we filed in oct but got my visa today with refusal bcoz of insufficient funds. i am reallly worried but i spoken to one lawyer n they said for 2 options either oral hearing in front of judge or paper hearing. i m goin for paper hearing. is my decision right? plz help wat shud i do as i have only 10 days to appeal. thnz

oh i forgot to mention now i am showing my insurance policy as hard cash money of that time as we were not aware to show another £533 bcoz of laack of knowledge .

Insurance policy???? Not sure on that. Have you checked the guidelines as I am not sure if Insurance policy would be considered as an immediate fund at your disposal.. If the guideline accepts it then submit it and do quote that guideline regulation in your witness stament clearly.. You have to show the tribunal that Insurance policy is an acceptable form of Maintenance funds....

[ammeck09]

Is that not always been the case. Appeal only comne when you can show that HO made some mistake and at the time of application they had the required funds.

My understanding is that above is always been the case as long as the applicant can prove that they had the required money at the time of application....!

hello guys, i want to share my psw visa exp. it was me n my partner application and funds needed to show was £800 for myslf and £533 for my partner(dependent) but our college ppl told to show only £800 and we filed in oct but got my visa today with refusal bcoz of insufficient funds. i am reallly worried but i spoken to one lawyer n they said for 2 options either oral hearing in front of judge or paper hearing. i m goin for paper hearing. is my decision right? plz help wat shud i do as i have only 10 days to appeal. thnz

oh i forgot to mention now i am showing my insurance policy as hard cash money of that time as we were not aware to show another £533 bcoz of laack of knowledge .

Insurance policy???? Not sure on that. Have you checked the guidelines as I am not sure if Insurance policy would be considered as an immediate fund at your disposal.. If the guideline accepts it then submit it and do quote that guideline regulation in your witness stament clearly.. You have to show the tribunal that Insurance policy is an acceptable form of Maintenance funds....

I'm afraid insurance policy is not considered as funds available according to the HO policy guidelines on maintenance funds. Read this part of the guidelines:

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 or financial instruments such as shares, bonds, pension funds etc, regardless of notice period, are not acceptable.

[Gururaj]

hello guys, i want to share my psw visa exp. it was me n my partner application and funds needed to show was £800 for myslf and £533 for my partner(dependent) but our college ppl told to show only £800 and we filed in oct but got my visa today with refusal bcoz of insufficient funds. i am reallly worried but i spoken to one lawyer n they said for 2 options either oral hearing in front of judge or paper hearing. i m goin for paper hearing. is my decision right? plz help wat shud i do as i have only 10 days to appeal. thnz

oh i forgot to mention now i am showing my insurance policy as hard cash money of that time as we were not aware to show another £533 bcoz of laack of knowledge .

Insurance policy???? Not sure on that. Have you checked the guidelines as I am not sure if Insurance policy would be considered as an immediate fund at your disposal.. If the guideline accepts it then submit it and do quote that guideline regulation in your witness stament clearly.. You have to show the tribunal that Insurance policy is an acceptable form of Maintenance funds....

I'm afraid insurance policy is not considered as funds available according to the HO policy guidelines on maintenance funds. Read this part of the guidelines:

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 or financial instruments such as shares, bonds, pension funds etc, regardless of notice period, are not acceptable.

If the regulation speaks like that, the only other option would be to submit any other saving accounts available during the application period (in country/home country account). Legal help is quite important here if you havent got the other accounts elsewhere...