Shailesh Rajbhandari v The Secretary of State for the Home Department

For a Tier 1 (Post-Study Work) application, Appendix C of the Immigration Rules requires the applicant personally to have the prescribed funds during the required period. It is insufficient that funds belonging to a third party are merely available to the applicant.

The different wording for Tier 4 students is deliberate. It accommodates students, including children, whose maintenance may be provided by relatives or sponsors. The use of “available” in Tier 1 policy guidance adds that funds held by the applicant must be usable; it does not replace the Rules’ requirement that the applicant have them. Nor can wording in an application form relax that requirement.

The appellant, a Nepalese national, applied for leave to remain as a Tier 1 (Post-Study Work) Migrant shortly before his student leave expired. The Secretary of State refused the application because he had not obtained the required maintenance points. The First-tier Tribunal dismissed his appeal.

The appellant accepted that his own account, and a joint account with his girlfriend, did not contain the required £800 throughout the relevant 90-day period. He relied instead on evidence of his parents’ financial resources and their past support for him. The appeal raised whether funds need only be available to a Tier 1 applicant, as they may be for a Tier 4 student, or must be held by the Tier 1 applicant.

1. Appeal dismissed. On the true construction of Appendix C of the Immigration Rules, a Tier 1 (Post-Study Work) Migrant must have the specified funds. The £800 could not be satisfied by money merely available from the appellant’s parents.

2. The distinction between having funds and having funds available was maintained by the Rules. The provisions using “available” appeared principally in the Tier 4 student provisions. That distinction was coherent because students may depend on relatives or funding bodies, whereas a person seeking leave to work may reasonably be expected to maintain himself from work.

3. Paragraph 1A imposed the relevant temporal requirements. It did not erase the substantive distinction elsewhere in Appendix C between funds which a Tier 1 applicant must have and funds which need only be available to a Tier 4 student.

4. The Tier 1 policy guidance’s reference to “£800 of available funds” imposed an additional condition that funds held by the applicant must not be unavailable. It did not substitute availability for the requirement to have the funds. Similarly, the application form’s reference to access to available funds could not relax the Rules, particularly as the form also directed the applicant to the Rules and stated that a minimum level of funds was required.

5. In any event, the parental letter did not establish support for post-study work at the required level. It referred to payments while the appellant remained a student, and the financial history did not show contributions sufficient to maintain the required balance. The appellant would therefore have failed even if third-party availability had sufficed.

6. There was no basis for leave outside the Rules under Article 8. The appellant had entered and remained for temporary purposes, had completed his studies, had no demonstrated ability to maintain himself, and showed no Convention basis for remaining after his leave expired.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the refusal of Tier 1 (Post-Study Work) leave.
• First-tier Tribunal: Immigration Judge Y J Jones dismissed the appeal against the Secretary of State’s refusal.
• Secretary of State: refused the application on 17 December 2010 because the appellant failed to obtain sufficient maintenance points under the Immigration Rules.