NA & Ors v The Secretary of State for the Home Department

NA & Ors v The Secretary of State for the Home Department

The maintenance (funds) requirement under Tier 1 (Post-Study Work) is mandatory and must be satisfied by showing the requisite funds for each day of the three months immediately preceding the application. Evidence post-dating the application cannot be used to satisfy this requirement. For applications before 1...

Source-derived case information.

Parties
Appellant: NA; Appellant: CO; Appellant: MM; Respondent: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
31 October 2008
Procedural Posture
Immigration Appeal / Reconsideration of Appeals Against Refusal of Leave to Remain Under Tier 1 (post Study Work)
Outcome
Appeals of first and third appellants dismissed; appeal of second appellant allowed
Legal Topics
Points Based System, Tier 1 (post Study Work), Maintenance (funds) Requirement, Documentary Evidence, Transitional Provisions, Appeals Procedure
Immigration Law Administrative Law Points Based System Tier 1 (post Study Work) Maintenance (funds) Requirement Documentary Evidence Transitional Provisions Appeals Procedure

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Summary, issues, holding and outcome

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Parties

NA

Appellant

CO

Appellant

MM

Appellant

Secretary of State for the Home Department

Respondent

Procedural Posture

Immigration Appeal / Reconsideration of Appeals Against Refusal of Leave to Remain Under Tier 1 (post Study Work)

Legal Issues

  1. 1 Whether the maintenance (funds) requirement under para 245Z(e) and Appendix C is mandatory and admits of no discretion
  2. 2 Whether evidence of funds post-dating the application can be considered on appeal under s.85(4) of the Nationality, Immigration and Asylum Act 2002
  3. 3 Interpretation of transitional provisions for applications before 1 November 2008

Ratio Decidendi

The maintenance (funds) requirement under Tier 1 (Post-Study Work) is mandatory and must be satisfied by showing the requisite funds for each day of the three months immediately preceding the application. Evidence post-dating the application cannot be used to satisfy this requirement. For applications before 1 November 2008, only a closing balance of £800 or over within one month before application is required. Section 85(4) allows consideration of evidence submitted after the application only if it relates to the relevant period before the application. Illness or other mitigating circumstances do not excuse non-compliance.

Court Disposition

Appeals of first and third appellants dismissed; appeal of second appellant allowed

Orders

  • First appellant's appeal dismissed; SIJ McKee's determination set aside
  • Second appellant's appeal allowed; IJ's determination set aside