THE very latest Points Based System decision is a case called AA (paras 131A-I: switching) Nigeria [2009] UKAIT 00055.
In this decision, the Tribunal has confirmed for the first time that a person applying under the Points Based System does not need to have existing leave under the Immigration Rules at the time of application. To be fair, this has always been the understanding in practice, but it is important that we now have judicial pronouncement on such a crucial point.
Context is important. The new Points Based System is an extremely rigid regime which does not accommodate flexibility or discretion. You either satisfy the rules or you do not. Points are awarded on an ‘all or nothing’ basis. Substantial compliance will not do. The ‘near miss argument’ will not cut it.
Against that background therefore, the AA decision is useful arsenal. It allows disappointed applicants to re-apply and get back into the game.
The Appellant, a Nigerian national, applied for leave to remain in the UK as a Work Permit holder. Although she had held a student visa at some point, she was no longer a student at the time she applied for leave as a Work Permit holder, having obtained leave outside the rules.
One of the two issues, therefore, was whether she needed to have leave in any of the categories of the Immigration Rules in order to switch to the Work Permit category.
The Tribunal ruled: “The rule contains no requirement as to existing leave.”
The Tribunal also said: “For the avoidance of doubt we should add that, although that is the characteristic of the rule, an applicant who has no leave at the time of the application will have no right of appeal if the application is refused.”
This important decision, therefore, clearly means that someone with leave outside the Immigration Rules (such as Discretionary Leave) should be able to switch to any of the categories under the Points Based System.
More importantly, it also means that a person who is an overstayer may actually now be able to apply under the Points Based System, as no existing leave is required at the time of application.
A common example will be as follows;
· If you apply under, say the Post Study Work category, and you are refused for failure to keep £800 for three months, you can re-apply after satisfying the three months requirement, even though your current visa may have expired at the time of the new application. This is, however, subject to the requirement that the new application is made within 12 months of the award of the qualification, and that you had existing leave during the period of study.
· For students, it should be possible to re-apply after the expiry of existing leave, provided that you are continuing on the same course that you last obtained leave for.
On a related matter, one crucial thing to watch out for where an application has been refused by the Home Office is whether Rule 395C has been considered in the refusal letter.
Rule 395C obliges the Home Office to consider a number of factors before requiring the removal of an immigrant from the UK, such as how long he has resided in the UK, his family connections, his personal history, any previous criminal record, any compassionate circumstances, etc.
From my experience, the Home Office often omit to take this important rule into account in their refusal letters.
If that rule has not been considered, this should be raised at appeal with the effect that the Home Office decision will be held to be unlawful on that limited point alone, and should be referred back to the Home Office for a new decision. This may give an applicant the opportunity to demonstrate that they now comply with the maintenance requirements.
Taffy Nyawanza is a solicitor with Bake & Co Solicitors in Birmingham. He can be contacted on e-mail tnyawanza@bakesolicitors.co.uk or +44121 616 5025
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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