Ditching dependants at Tier 1 appeal

IN A recent UK Asylum and Immigration Tribunal case, our client and her spouse’s dependant made an application for leave to remain in the UK under the Tier 1 (Post-Study Work) Migrant scheme.

The application was rejected by the Home Office because she had failed to satisfy the Home Office that she met the strict requirements of the Immigration Rules relating to maintenance in that she did not have sufficient funds to cover both herself and her dependant. There was just enough funds for herself.

The rules on maintenance are that a Tier 1 (Post-Study Work) applicant from within the UK should demonstrate that they can maintain themselves adequately by producing proof that they have maintained a minimum amount of £800 in their bank account continuously for a period of three months prior to the date of application. If they have dependants, the amount increases by £533 per dependant. For our client and her dependant, the total required was therefore £1,333 over three months.

At our client’s appeal, the Tribunal agreed that it was possible to differentiate between the main applicant and his dependants, effectively dropping the dependant and proceeding in the appeal as a sole applicant. The Tribunal was fortified in its approach by the fact that under the Points Based System, the main applicant fills in a separate application form and pays a separate fee to the dependant.

It also relied on the case of Amarteifio & Ors v Entry Clearance Officer, Accra [2006] EWCA Civ 1758, the closest relevant case-law. Amarteifio involved an entry clearance appeal where the appellant argued that because the available money could not stretch to the maintenance of three children, the Court should differentiate between them and allow the appeals of one or two of them.

The Court confirmed that that this was a viable argument but that the argument had not been raised at the early stages of the proceedings. The appeal therefore failed on the technical basis that the ‘differentiation’ point had not been properly canvassed. Clearly, the Court of Appeal was however open to the argument.

This is therefore a very useful argument that can be made where the maintenance funds are not sufficient to cover the main applicant and their dependant.

Taffy Nyawanza is a solicitor with Bake & Co Solicitors in Birmingham. He can be contacted on tnyawanza@bakesolicitors.co.uk or ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk

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