AM & Anor v The Secretary of State for the Home Department

A Tier 1 applicant may satisfy the maintenance requirement with a joint bank account where the applicant is named on the account and the statements meet the evidential conditions in paragraphs 93–96 of the relevant Tier 1 Guidance. The Guidance does not require further proof that the funds belong exclusively to the applicant, or proof of the proportion owned by each joint account holder.

Points-based immigration requirements are to be applied according to their specified evidential criteria. General concerns about the practical availability, source or ownership of funds cannot add requirements not found in the Rules or Guidance.

The appellants, a married couple and Pakistani nationals, applied for leave as a Tier 1 (post-study work) migrant and dependant. Their application was refused because their individual current account did not maintain the required sum for the relevant three-month period.

Before the Immigration Judge, the first appellant produced statements for a Barclays joint account held in his name and that of a friend. The account contained more than the required £1,333 throughout the period. The Immigration Judge dismissed the appeals, holding that it was impossible to determine what funds were personally available to the appellants from an account shared with an unrelated third party.

On reconsideration, continued as an appeal to the Upper Tribunal, the issue was whether those joint-account statements satisfied the maintenance evidence required by the Tier 1 Guidance.

1. The appeals were allowed. The Immigration Judge had erred in law by refusing to treat the joint-account statements as meeting the maintenance requirement.

2. The appellants’ maintenance requirements were not to be assessed independently. They could be met by showing that they jointly satisfied the requirements of the Rules and Guidance.

3. Paragraphs 93–96 of the relevant Tier 1 Guidance stated the conditions for bank-statement evidence. The joint account met them: it held the required sum throughout the specified period and the first appellant’s name appeared on the statements.

4. The Guidance did not require proof of who owned the money in the account, nor did it require evidence of the amount personally available to each account holder. Its conditions could therefore be met even if the money had been borrowed solely to produce statements satisfying the prescribed criteria.

5. The Immigration Judge’s concerns about the common-sense reality of access to funds were understandable but introduced an extraneous requirement into a points-based scheme. The scheme had to be applied by reference to its stated evidential rules.

6. Further evidence which, if supplied with the application, would have enabled it to succeed was admissible in an in-country appeal under section 85(4) of the Nationality, Immigration and Asylum Act 2002, as explained in NA and Others (Tier 1 post-study work – funds) [2009] UKAIT 00025. If the joint statements had accompanied the application, it should have been granted; in any event, the appeals succeeded.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, continued as an appeal by paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Order 2010, the Tribunal set aside the Immigration Judge’s decision for error of law, re-made it and allowed both appeals.
• Asylum and Immigration Tribunal: Immigration Judge Raymond dismissed the appeals against the refusal of leave to remain. A reconsideration order was subsequently obtained.
• Secretary of State for the Home Department: On 9 July 2009, refused the applications to vary leave as a Tier 1 (post-study work) migrant and dependant.