Post
by osas2011 » Mon Aug 02, 2010 7:45 pm
HI LILA
THIS IS FROM THE UKBA WEBSITE: CHECK THIS OUT.
23 July 2010
The UK Border Agency has issued new policy guidance following the judgments in the cases of Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719.
The guidance affects migrants under all tiers of the points-based system whose applications were refused solely because they failed to meet the maintenance (funds) requirements, and who unsuccessfully applied:
from outside the UK between 23 June and 22 July 2010 inclusive; or
from inside the UK (at a time when they had lawful status in the UK) on or before 22 July 2010.
The new policy guidance, which you can download from the right side of this page, explains how these applicants can request a review of their refusal.
POINTS-BASED SYSTEM
MAINTENANCE (FUNDS): POLICY DOCUMENT
23 July 2010
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WHO DOES THIS DOCUMENT APPLY TO?
1.
This policy document covers migrants who:
a.
Applied for further leave to remain under Tiers 1, 2, 4 and 5 of the Points Based System (PBS), including dependants; and
i.
Applied up to and including 22 July 2010; and
ii.
Were refused on Maintenance (Funds) only; and
iii.
Are lawfully in the United Kingdom at the time of requesting reconsideration.
b.
Applied for entry clearance under Tiers 1, 2, 4 and 5 of PBS, including dependants; and
i.
Applied between 23 June and 22 July 2010 (inclusive); and
ii.
Were refused on Maintenance (Funds) only.
2.
This instruction does not apply to migrants who applied for either entry clearance, or leave to remain on or after 23 July 2010. Those applications will be considered under the new rules laid before parliament on 22 July (which became law on 23 July 2010).
BACKGROUND
3.
Judgment was given by the Court of Appeal in the Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and others on 23 June 2010 in relation to the period which a migrant must hold the requisite amount of funds. The judgment stated that the Maintenance (Funds) assessment must be made in line with the Immigration Rules.
4.
The Immigration Rules only specify that the migrant must hold the required level of funds (specific to the Tier, or sub-Tier which the application was made under) on the day the application was made.
5.
Migrants are likely to fall into one of three categories:
a.
Current applications;
b.
Applications which have been refused without a right of appeal, or have had the appeal dismissed;
c.
Applications currently going through the appeals process.
6.
UKBA accepts that applications submitted and not yet decided as at 23 July 2010 and applications refused on Maintenance (Funds) between 23 June and 22 July 2010 require reconsideration further to the judgment in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and others.
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7.
UKBA does not accept that it is under any legal obligation to reconsider previously refused applications where those applications were refused prior to 23 June 2010 further to this judgment.
8.
However, in respect of applications made and refused on maintenance grounds only and where the applicant was lawfully in the United Kingdom at the time the application was made and remains lawfully in the United Kingdom at the time of requesting reconsideration, UKBA proposes by way of this policy to treat those individuals exceptionally and reconsider their applications in line with this judgment where the applicant requests that UKBA do so.
APPLICATIONS SUBMITTED IN THE UK
MIGRANTS WITH CURRENT APPLICATIONS FOR FURTHER LEAVE TO REMAIN SUBMITTED PRIOR TO 23 JULY 2010
9.
Applications should have all attributes considered in line with the published guidance, with the exception of Maintenance (Funds).
10.
As it is unlikely that the migrant will be able to provide evidence that they meet the requirements of the Maintenance (Funds) attribute on the day of application, the attribute will be considered on the following basis.
11.
Migrants are required to demonstrate that they hold the required level of funds (for the entire family) at the closing balance on any one day during the one month period prior to the date of application.
12.
The grant of leave (if appropriate) will confer the same rights and impose the same conditions as specified by the Immigration Rules.
13.
Where the migrant does not meet the requirements set out at paragraph 9, the application for reconsideration will be refused. Reference will be made to the fact that the application has been considered in line with the Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and others judgment.
14.
A migrant falling into this category does not need to take any action as their application will be considered automatically in line with this policy.
MIGRANTS WITH APPLICATIONS FOR LEAVE TO REMAIN SUBMITTED PRIOR TO 23 JULY 2010 WHICH HAVE BEEN REFUSED WITHOUT A RIGHT OF APPEAL, OR HAVE HAD THE APPEAL DISMISSED
15.
Migrants wanting to seek remedy to the refusal of their application should write to the casework unit in writing which assessed their application and:
i.
state their Home Office reference number;
ii.
state their current residential address; and
iii.
provide their current valid passport (or relevant travel document) and biometrics card (if applicable).
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16.
Migrants must be lawfully in the United Kingdom in order to take advantage of this reconsideration process.
17.
A request by a migrant for a previously refused application to be reconsidered under this policy will be treated as an application to switch from the migrant’s current leave to the leave granted as a consequence of the previously refused application.
18.
Migrants are required to demonstrate that they hold the required level of funds (for the entire family) at the closing balance on any one day during the one month period prior to the date of application
19.
Migrants will be unable to provide additional evidence to support their claim for points. Their request for a review of the decision will be based solely on evidence included with the original application.
20.
The grant of leave (if appropriate) will confer the same rights and impose the same conditions as specified by the Immigration Rules at the time the application was originally decided.
MIGRANTS WITH AN OUTSTANDING APPEAL OR JUDICIAL REVIEW AGAINST THE REFUSAL OF AN APPLICATION FOR FURTHER LEAVE TO REMAIN SUBMITTED PRIOR TO 23 JULY 2010
21.
Where identified we will withdraw the immigration decision that gave rise to the appeal, or judicial review claim. We will then reconsider the migrant’s case and decide whether they met the requirements of the Maintenance (Funds) attribute which are as follows:
22.
Migrants are required to demonstrate that they hold the required level of funds (for the entire family) at the closing balance on any one day during the one month period prior to the date of application.
23.
The grant of leave (if appropriate) will confer the same rights and impose the same conditions as specified by the Immigration Rules at the time the application was originally decided.
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APPLICATIONS SUBMITTED OVERSEAS
CURRENT APPLICATIONS FOR ENTRY CLEARANCE SUBMITTED BETWEEN 23 JUNE TO 22 JULY 2010 (INCLUSIVE)
24.
Applications should have all attributes considered in line with the published guidance, with the exception of Maintenance (Funds).
25.
As it is unlikely that the applicant will be able to provide evidence that they meet the requirements of the Maintenance (Funds) attribute on the day of application, it will be considered on the following basis.
26.
Applicants are required to demonstrate that they hold the required level of funds at the closing balance on any one day during the one month period prior to the date of application.
27.
The grant of leave (if appropriate) will confer the same rights and impose the same conditions as specified by the Immigration Rules.
28.
The applicant does not need to contact the post which considered their application, as it will be assessed on the policy set out in paragraphs 24-26.
APPLICATIONS FOR ENTRY CLEARANCE SUBMITTED BETWEEN 23 JUNE TO 22 JULY 2010 (INCLUSIVE) WHICH HAVE BEEN REFUSED AND HAD THEIR ADMINISTRATIVE REVIEW DISMISSED
29.
Applicants wanting to seek remedy to the refusal of their application should contact the entry clearance post which assessed and issued the original decision quoting their reference number and current residential address.
30.
Applicants are required to demonstrate that they hold the required level of funds at the closing balance on any one day during the one month period prior to the date of application.
31.
The review of the refusal will be limited to solely the Maintenance (Funds) attribute.
32.
Applicants will be unable to provide additional evidence to support their claim for points. Their request for a review of the decision will be based solely on evidence included with the original application.
33.
The grant of leave (if appropriate) will confer the same rights and impose the same conditions as specified by the Immigration Rules.
34.
Where the applicant does not meet the requirements set out at paragraph 24, the application should be refused. Specific reference should be made to the fact that the application has been considered in line with the Pankina judgment
35.
If the refusal is maintained following the additional review, a letter should be sent to the applicant confirming the decision. No further action is required.
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GENERAL GROUNDS FOR REFUSAL
36.
Where the migrant falls for refusal under General Grounds for refusal in paragraphs 320-322 of the Immigration Rules, we will refuse their application even if it otherwise qualifies under the terms of this policy. This might happen, for example, if the applicant has broken UK immigration law, or acquired a relevant criminal conviction since the refusal of their original application. On all reconsiderations, updated checks will be made with the appropriate government agencies.
DEPENDANTS
37.
The immigration status of dependants of migrants in the categories covered by this policy will follow that of the principle applicant.
RESTRICTIONS
38.
Any restrictions imposed on the migrant’s ability to take employment will follow those which were in place at the time of application, rather than the date of decision.
CLOSING DATE
39.
Migrants will have until 22 June 2011 to take advantage of the proposed remedies.
This document should be used until it is updated in due course.
Common guys!