OK v Secretary of State for the Home Department

The transitional arrangements for former IGS, SEGS and FT:WISS participants concerning Attributes and English language were distinct from the temporary concession concerning evidence of Maintenance (Funds). The former arrangements gave qualifying applicants points for attributes and English language, but did not exempt them from the ordinary maintenance requirement.

An applicant who applied after 31 October 2008 had to show the required funds for the specified three-month period under the Immigration Rules HC 395. An unreceived and unclear automated email sent to another person did not create a legitimate expectation that the maintenance concession had been extended.

The appellant, a Ukrainian national, appealed against Immigration Judge Abebrese’s dismissal of her appeal from the refusal to vary her leave from the International Graduates Scheme to Tier 1 (Post-Study Work) under paragraph 245Z(e) of the Immigration Rules HC 395.

Her account had fallen below £800 during the three months before her February 2009 application. She contended that transitional arrangements for IGS holders exempted her from the maintenance requirement, relying in part on an email exchange between the UK Border Agency and another applicant. Reconsideration had been ordered on the transitional-arrangements issue and continued in the Upper Tribunal following the abolition of the AIT.

The central issue was whether the transitional arrangements dispensed with the requirement to prove maintenance funds throughout the relevant period.

1. Appeal dismissed. The Immigration Judge made no error of law in upholding the refusal.

2. Paragraph 245Z(e) and Appendix C of the Immigration Rules HC 395 required the appellant to score ten points for maintenance funds. The policy guidance was incorporated into the application process. It required applicants seeking further leave to show £800 in personal savings held for at least three months before the application.

3. The Tribunal rejected the appellant’s conflation of two separate transitional arrangements. The temporary maintenance-evidence concession ended on 31 October 2008. It allowed only a statement-date showing of the required funds. The continuing IGS and SEGS arrangements applied to attributes and English language only: qualifying holders received 75 and 10 points respectively. They remained subject to the maintenance requirement, unless they had also applied within the earlier maintenance concession.

4. The appellant applied after 31 October 2008 and did not maintain £800 throughout the funding period. The application form and guidance made the continuing maintenance obligation sufficiently clear.

5. The email exchange did not assist. It was not sent to, seen by, or relied on by the appellant. Applying the legitimate-expectation approach discussed in SK (Tier 1 – transitional provision – maintenance) Republic of Korea [2009] UKAIT 00032, the Secretary of State had made no practice or promise extending the maintenance concession beyond 31 October 2008.

6. The Tribunal also refused an unnotified adjournment. The appellant had not shown that further instructions or evidence were necessary for a just determination under rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, upheld the Immigration Judge’s determination and found no error of law.
• Asylum and Immigration Tribunal: Senior Immigration Judge Chalkley ordered reconsideration on the transitional-arrangements issue. The pending reconsideration continued in the Upper Tribunal under Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010.
• Immigration Judge: Dismissed the appeal against refusal of leave as a Tier 1 (Post-Study Work) migrant.