Merrimen -Johnson, R (On the Application Of) v Secretary of State for the Home Department

Under the points-based immigration rules, an applicant must demonstrate that she has the specified maintenance funds. Evidence that a spouse, fiancé or other third party holds the money does not satisfy that requirement. Guidance specifying acceptable documents explains how the requirement is evidenced; it does not create an additional requirement. A first application submitted without the required fee is invalid where the Immigration Rules so provide. A later valid application made after existing leave has expired cannot rely on the earlier invalid application.

The claimant sought judicial review of the Secretary of State’s refusal of her application for leave to remain as a Tier 1 Post-Study Work Migrant. Her first application was submitted before her student leave expired but without the required fee. She then made a valid application after her leave had expired.

The Secretary of State refused the application because the evidence did not establish the required maintenance funds and did not adequately prove the claimed qualification. Permission to apply was granted on several grounds, including whether the claimant could rely on her husband’s resources and whether her university award was sufficiently evidenced. The central issue was whether third-party funds satisfied the maintenance requirement in Appendix C.

1. Invalid first application. The first application, submitted without the required fee, was invalid under paragraphs 34A and 34C of the Immigration Rules. The earlier regulations referred to when permission was granted had been superseded. The only valid application was made after the claimant’s leave had expired.
2. Statutory appeal route. The judge regarded it as very doubtful that the existence of a statutory right of appeal was properly a matter for judicial review. The Secretary of State could neither remove a right of appeal conferred by statute nor create one where none existed. If a right of appeal existed, the proper course was to exercise it before the Tribunal.
3. Maintenance requirement. Paragraph 245Z required the claimant to obtain the relevant points under Appendix C. Appendix C required the applicant to have the specified funds at the date of application and to have held them for the period specified in the guidance. The claimant’s evidence showed funds held by her fiancé or husband, not by her. It therefore failed to establish that she herself had the required funds.
4. The distinction between having funds and having personal savings did not assist the claimant because she had shown neither. The requirement that the funds be held by the applicant was contained in Appendix C itself. The guidance merely identified the documents needed to prove compliance. It did not impose an additional substantive requirement.
5. The decision in Ahmed Mahad v Entry Clearance Officer Addis Ababa [2009] UKSC 16 concerned the interpretation of different Immigration Rules and did not establish that the Secretary of State was unable clearly to exclude third-party support in another category. It did not alter the construction of Appendix C.
6. The maintenance failure was decisive. The Secretary of State’s decision fell within the Immigration Rules and was lawful. The claim was dismissed. Permission to appeal was refused, and the usual costs order was made, subject to the position concerning public funding.

The claim was brought at first instance by judicial review. Permission to apply was granted on 21 August 2009 by HHJ Gilbart QC, sitting as a deputy judge of the Administrative Court. The present court dismissed the claim and refused permission to appeal to the Court of Appeal.