Third, there is an absence in these provisions of any tests that require the decision-maker to make up his or her own mind about the appellant's academic or linguistic attributes by reference to past circumstances or performance. There is no longer any maintenance requirement of a kind that requires the decision maker to make a judgement about whether it is "adequate". If, by reference to specified lists or exceptions, applicants can show that the requisite academic qualification has been awarded to them, that they have the necessary language requirement and a specified amount of funds (and assuming no general grounds for refusal apply), they must be granted leave to remain for two years (less in IGS, SEGS or FT:WISS cases: see para 245ZA(a)(i)). We shall have cause to return to this observation later on when dealing with the submissions made on behalf of the third appellant, who sought to rely on the Court of Appeal case of GOO .
It would be wrong to say that the Points Based System generally represents the ascendancy of "box-ticking" or that it has completely eliminated the need for the exercise of individual judgement by the decision-maker, particularly in respect of the relevant Policy Guidance. For example, in relation to verification of documents both the Policy Guidance for Tier 1(General) and that for Tier 1(Post Study Work) note that where the agency has "reasonable doubts" that a document is genuine it may seek to verify the document with an independent third party or government agency. And it is stated that what is considered to be "reasonable doubt" will depend on an individual application. But so far as para 245Z and Appendices A, B and C are concerned, there are no such terms and even in the Policy Guidance, there are relatively few requirements which require an exercise of interpretation or individual judgement.
Fourth, the provisions relating to Tier 1 (Post-Study Work) do not contain any allowances for persons who find themselves unable to meet the requirements specified in Appendices A-C by virtue of illness or related circumstances outside the control of an applicant. There are none in para 245Z(e) or Appendix C and none in the Policy Guidance. That is not to say that the Tier 1 scheme as a whole is wholly free of such allowances. For example under the separate Tier 1(General) of the Points Based System – Policy Guidance, in the section dealing with "Attributes" and calculation of points deriving from previous earnings, para 67 states:
the applicant can establish that they have been absent from the workplace at some point during the last 12 months, due to full-time study (initial applications only);
or
the applicant can establish that they have been absent from the workplace at some point during the last 12 months (or during the 12 months preceding the start of full-time studies) due to a period of maternity or adoption related leave" (the latter are dealt with at paras 80-85).
Fifth, the relevant Immigration Rules contain specific requirements for documentary evidence, which, again, are described in mandatory terms, para 245AA stipulating that where Appendix A to C, or E state that specified documents must be provided:
Here again there is an example of an immigration rule that defers to the Policy Guidance for defining a particular requirement, namely what are the "documents specified".
In the light of these general observations we turn to set out our findings on the key issues raised by these appeals.
The mandatory nature of the Tier 1 (Post-Study) Work requirements
In view of the mandatory formulation of the requirements for the Tier 1 (Post-Study Work) scheme as given by the Immigration Rules we see no scope for adopting a purposive construction. It is well-established that such a construction cannot be applied where the words are wholly unambiguous ( Alexander v Immigration Appeal Tribunal ) [1982] 2 All ER 766 . Subject to what we say below about the transitional provisions (and also two other aspects of the Policy Guidance: see paras 71, 72-78), their plain and ordinary meaning is absolutely clear. The use of "must" means that either the requirements are met or they are not met. In ex parte Rahman [1987] Imm AR 313, the Court of Appeal stated that although a degree of latitude is allowed in construing the Immigration Rules, it does not extend to departing from the plain, ordinary, natural meaning of the language. In any event, even when a purposive construction may be called for (e.g. because of ambiguity), it is salient to consider what was said by Laws LJ in MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102 . Laws LJ considered whether the plain and ordinary meaning of a rule should be set aside or modified in order to give effect to a purposive construction. He pointed out that any rule should be construed so as to further its purpose, but considered that that purpose could usually be identified from the terms of the instrument itself. Developing the point further in AM (Ethiopia) & Others & Anor v Entry Clearance Officer [2008] EWCA Civ 1082 , Laws LJ stated that "[i]t is in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve…."
The non-discretionary nature of the requirements
We have already highlighted the mandatory wording of para 245Z(e), Appendix C and the relevant parts of the Policy Guidance. Additionally we have noted that there is no scope in para 245Z, Appendix C or the Policy Guidance for allowances to be made for applicants who are unable through circumstances beyond their control to meet the maintenance requirement. There is, we saw, such a provision within the Policy Guidance provisions governing Tier 1(General) and past earnings (for maternity and adoption), but there is nothing similar under the Post-Study Work scheme.
For this reason we see no merit in Miss Cole-Wilson's submissions concerning the relevancy of GOO . As noted earlier, there is an absence in the Tier 1 (Post-Study Work) provisions of any tests that require the decision-maker to make up his or her own mind about the appellant's abilities or qualifications or the quality of his or her past performance as a student. These provisions are wholly different in character from those found within the Immigration Rules for students considered in GOO . Terms like "regular attendance" and "satisfactory progress" are not tied to any prescribed set of standards. The Immigration Rules laying down requirements of this kind for students have a long history and have been operated hand-in-hand with a set of Home Office practices when applying them to students who had fallen ill or were unable to study for pressing reasons. It was this complex context (or "acquis") which led Sedley LJ to decide that the Tribunal's approach to such criteria for ascertaining ability to study had been too narrow, stringent and literal and had to be rejected in favour of a broader approach which accepted that attendance and progress could be assessed giving due weight to justifiable difficulties that a student may have experienced. Such a context is entirely lacking under the Tier 1 (Post-Study Work) scheme (the terms of which may indeed be in part a response to GOO ).
To the extent that the previous type of maintenance requirement often used in the Rules - cast in terms of adequacy - was and is capable of individual judgement, such a requirement has not been replicated in the context of the Tier 1 scheme. Maintenance is now defined in terms of specified funds.
The historic nature of the Appendix C maintenance requirement
In order to achieve the 10 points awarded for maintenance, Appendix C states that applicants must show "[i]n all cases" that they have the funds specified "at the date of the application and must also have had those funds for a period of time set out in the guidance specifying the specified documents for that purpose". The language could not be clearer. It stipulates that a decision must be made by reference to a fixed point in the past, namely the date of application. It is an historic test affixed to that specific date. It is true that para 2(b) contains the present tense: it states that an applicant can only awarded 10 points if her or she "has" the level of funds shown. But the words used are "if an applicant… applying for leave to remain has…" that level (emphasis added) and para 2 is also clearly circumscribed by para 3, which states that the applicant "must have the funds specified in para 2 above at the date of the application …". Put another way, the rule in Appendix C is one which does not require the decision-maker to ask "What is the position today (at the date of decision)?", but "What is shown about the position over a past period (calculated by reference to the date of applying)?". The requirement to "have" the level of funds is met by proving that they were held at that level over a specified past period.
It is in virtue of this feature of the requirement that we reject the submissions made by Ms Heybrook for the first appellant which sought to argue that he was entitled to succeed by virtue of s.85(4) as interpreted by the Tribunal in EA (Nigeria) (itself seeking to clarify the effect of LS (Gambia)). Of course, EA (Nigeria) has now to be read in the light of GOO and the fact that the Court of Appeal did not accept that it mattered whether students had changed courses from the ones nominated in their application, since such changes were considered not to alter the ongoing fact that they were applying for (further) leave as students. But in our view that modification does not affect the underlying principle expressed in EA that focus has to be placed on the substance of the decision. Indeed it is this principle that is the key to understanding why EA does not assist appellants in respect of appeals concerned with the Appendix C requirement. It is true that EA (Nigeria), like LS (Gambia) identifies the fact that s.85(4) has the effect that the question of whether appellants meet the requirements of the Immigration Rules may be decided in the light of post-decision evidence. But these cases were concerned with decisions that did not specify a fixed historic timeline. The type of immigration decision at issue here is one that concerns an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System". Part of the substance of that decision concerns whether something has been shown to be the case in the past and over a period of time to be calculated by reference to the date of application. A requirement that a person owned property at a specific point in time in the past is not met by showing that he owns it at the present time. EA fails to help applicants seeking to rely on funds accrued since they applied, not because of anything to do with whether the nature of their application has changed over time: normally applications made by applicants for leave to remain under the Post-Study Work scheme will not have not changed into something else. It fails to help simply because the decision in question in this type of case imposes a requirement tied to an historic time.
The relevance of s. 85(4)
What are the consequences of this for the applicability of s. 85(4)? According to Mr Tufan the specific provisions in the Immigration Rules and Policy Guidance governing Tier 1 prevent it from having any application.
The principal provision he identified was para 245AA, although in the light of questions the panel put to Mr Nicholson, he also sought to rely on a separate provision of the Rules, namely para 34A.
The effect of para 245AA was, he said, to specifically prevent applicants submitting documentary evidence post-application with a view to showing they did have £800 in personal savings over the requisite period. However, in our view that is to misread this rule. Para 245AA is not a rule requiring that documentary evidence has to be produced at the time of application . Rather it is a rule with a two-fold function, namely: (i) to identify what documents have to be provided ("…documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying"); and (ii) to clarify the consequences of non-provision of the specified documents ("If the specified documents are not provided, the applicant will not meet the requirements for which the specified documents are required as evidence"). The rule does not contain a requirement for production of the specified documents at any particular point in time. It is also, manifestly, not a rule purporting to govern how evidence is to be received on an appeal.
The other provision suggested tentatively by Mr Tufan to render the application of s.85(4) to Tier 1 cases nugatory is para 34A. The latter, of course, is a provision relating to all kinds of applications in connection with immigration. Paras 34A and 34C have three main elements: first they delimit their scope to application forms which are "specified" (para 34); second, they set out the requirements in respect of specified forms (34A); and third, they spell out the consequences of non-compliance with such requirements (para 34C). The apparent significance for Tier 1 (Post-Study Work) lies in what is stated in para 34A(vi). It obliges an applicant to comply with the following requirement:
The relevance of this provision, submits Mr Tufan, is that the Tier 1 (Post-Study Work) Policy Guidance specifies as specified documents documentary evidence of personal savings in certain forms, e.g. in the form of a personal bank statements. Hence he says, if an applicant has not ensured that his application is "accompanied" by such documents, there is a patent failure to comply with para 34A.
We do not agree with Mr Tufan's analysis. We have rejected the argument that s.85(4) can override a decision under the Points Based System tying eligibility to the possession of funds for a period in the past. Being able to show at the date of hearing that an appellant now has the requisite level of funds cannot help. But that does not mean the sub-section has no role whatsoever in such cases. We have examined its scope in relation to evidence about matters arising post-decision, but it is not only about that. The subsection states:
Its wording clearly encompasses not just evidence which concerns a matter arising after the date of decision but also evidence arising before it. Thus if there is evidence hitherto unavailable or simply not produced which concerns a matter arising before the date of decision, s.85(4) gives the Tribunal power to take it into account.
In principle, therefore, there is nothing to stop the Tribunal from exercising its power under s.85(4) to consider evidence that applicants have submitted post-application to show that they had the requisite £800 pre-application .
We agree that the language of para 34A is mandatory and that in the case of an applicant for Tier 1 (Post-Study Work) who has not submitted the specified documentary evidence with the application form (i.e. at the same time as the date of application), then it may be that the application does not meet all the requirements of the Rules. But none of the decisions in each of these appeals was based on para 34C (which sets out the consequences of a breach of para 34A). Further, each of the decisions states that it is a decision made under para 245Z(e) of the Immigration Rules. Each states that because the appellant has not provided the specified documents to show possession of the requisite level of funds he or she cannot be awarded any points under Appendix C (to which para 245Z(e) cross-refers). The precise route by which the respondent got to the point of deciding their cases under para 245Z(e) notwithstanding their apparent non-compliance with para 34A and the apparently clear terms of para 34C - whether that be by waiver, as suggested by Mr Nicholson, or some other route - is not a matter we need to decide. What we are faced with is the need to reconsider appeals against decisions made under the Immigration Rules and in our view it is imperative that we consider those decisions as they stand.
To the extent that Mr Tufan sought to take a position on para 34A, we would merely point out that the same IDIs that set out the new procedures brought in by para 34A relating to specified application forms (IDI Feb/08) state at 8.6. "Once discretion has been exercised to accept an application as valid, in line with para 8.3 or 8.5 above, consideration should continue as usual in line with the immigration rules or published policy applicable to the application".
There is a similar approach to be found in the Policy Guidance. This Guidance clearly proceeds on the assumption that the respondent has discretion as to whether to waive compliance with such requirements. As we have already noted, in the Tier 1 (Post-Study Work) Policy Guidance, under the head "General Guidance for Applicants to the Points-Based System" and the sub-head "Documents we require to support applications under the points-based system", it is stated at paras 10 and 11 that:
Such provisions somewhat undermine Mr Tufan's attempt to rely on other passages in the Policy Guidance which require specified documents to be submitted with the application, in particular the statement at para 10 that "[t]he applicant must ensure he/she provides all of the necessary supporting documents at the time he/she sends us the application."(emphasis added). As we have already noted, the very next paragraph, para 11, expressly states that the respondent has a discretion as to whether to treat failure to comply with this requirement as an obstacle: it states that "… if the applicant fails to send the correct documents we may refuse the application" (emphasis added).
Thus it can be seen that nothing in the Immigration Rules dealing with Points Based applications or in the Policy Guidance, has the effect of rendering s.85(4)'s potential application to Tier 1 (Post-Study Work) appeals nugatory. If it had been intended that applicants could not succeed unless they had submitted the specified documents at the time of applying that could have been specified; but it was not. The nature of the decision concerned (one whose substance relates in part to an historic timeline) limits the scope of application of this sub-section, but does not exclude it entirely. Neither the Rules nor the Policy Guidance stipulates anything either about the reception of evidence on appeal, which (for in-country appeals) is governed by s.85(4).
It is not surprising that this is so. Section 85(4) is a piece of primary legislation, whereas the Immigration Rules are not even, as noted by Lord Hoffman in Odeola v Secretary of State for the Home Department [2009] UKHL 25 at para 6, a form of subordinate legislation. By virtue of s.86(3) they have the force of law but they cannot override primary legislation. Indeed it seems to us, as it seemed to SIJ McKee in the case of the first appellant (and Mr Tufan did not seek to disagree), that the respondent has clearly recognised the current primacy of s.85(4) by having decided it was necessary to enact further primary legislation to circumscribe its effect specifically in respect of Points Based System appeals. As already noted, s.19 of the UK Borders Act 2007 amends s.85 of the 2002 Act so as to create two exceptions to it, one of which is that neither s.85(4) nor s.85(5) will apply to Points Based appeals. It introduces a statutory requirement in Points Based appeals prohibiting consideration by the Tribunal of evidence that was not submitted at the time of making the application. However, it is not yet in force. Until this amendment to the 2002 Act comes into force the immigration rules cannot fetter the applicability of s.85(4). They cannot create an exception not yet brought into force.
The relevant period of time for showing possession of funds: the post-31 October 2008 position
We must now spell out what the above means for the issue of the relevant period of time over which an applicant must show the requisite level of funds. Para 1A of Appendix C stipulates that an applicant "must... have the funds specified in the relevant part of Appendix C at the date of application and must also have had those funds for a period of time set out in the guidance…". Such wording makes plain that the decision on whether an applicant can show the requisite funds is to be made by reference to a period of time before the date of application as given in the Policy Guidance. The current version of the latter specifies that the period of time over which in-country applicants must show they have held at least £800 is the period of "at least three months prior to the date of application" (para 90).
The formulation given in para 90 does not say expressly that the period must be at least three months immediately prior to the date of application", but we do not think anything else can be meant. It would make no sense for it to refer to earlier disconnected periods of three months. So much is conveyed by the subsequent para 96 which states that the most recent bank or building society statements must be dated no more than one calendar month before the date of application and must cover three "consecutive" months. Were Appendix C and the specified parts of the Policy Guidance to be read as permitting applicants to rely on earlier unspecified periods of three months, there would be nothing in principle to stop them being possibly a very long time ago, even before an applicant had become a student.
The only caveat we would make to the above is that there would appear to be some leeway in respect of the evidence which applicants must produce in order to prove they have personal savings of £800 or more in the preceding three months. Although read literally that appears to mean that they must show they have this level of savings for the entirety of the calendar month immediately preceding the application, it is not said that the proof of that has to be completely up to date; indeed the reference in para 96 to the most recent statement having to be "dated no more than one calendar month before the date of application" clearly envisages that the proof need not cover the situation right up to and including the date of application. It is wholly understandable why this requirement cannot be meant literally, as it would impose something wholly impractical, conjuring up the spectacle of applicants having to perform a same-day dash from their banks (to get a statement dated that day) to the post-box (to post the application form). If an applicant applies in person at 4 p.m. on day X, it may be impossible for them to have obtained a bank statement giving a closing balance for that same day and it may be impracticable for them to obtain one within a week or so.
The relevant period of time for showing possession of funds: the position up to 31 October 2008: transitional provisions: one month or one day?
Of the three appellants only the second appellant had made an application before 1 November 2008. From our summary of their submissions it can be observed that both his representative, Mr Nicholson, and the Home Office Presenting Officer, Mr Tufan regarded the position under the transitional provisions as ambiguous. Very properly they made submissions covering the two main possible interpretations, namely that applicants must show that directly preceding the date of application they held £800 or more for either (i) any one day; or (ii) one month. Their uncertainty, which we are aware has been reflected in recent determinations by immigration judges on Tier 1 (Post Study Work) cases, is understandable since the specific guidance contained on the last page of the relevant Policy Guidance, headed "Transitional arrangements for maintenance (funds)" states that applicants do not need to show they have had the funds for at least three months before their application: "You must only show you have the required funds at the time you apply". That sentence, unhelpfully, does not in terms state what period of time is meant by "time you apply". The next two sentences give some clue. They state:
They help clarify that, in order to show you have requisite funds at the "time you apply", what you need to show must be dated no more than a month before the application. But they say nothing about needing to show funds covering the period of a month.
However, according to Mr Tufan, the final paragraph appears to point towards the period over which an applicant must show £800 or more as being one month. It states:
We note that the example hypothesizes a one month period (12 June-12 July) and refers to it being sufficient to produce a single bank statement with a closing balance of £800 " between" those two dates. The difficulty with this wording is that the term "between" is ambiguous. It could mean "over" or "covering" that period or it could mean simply a date falling within that period. The final sentence simply reinforces the point made earlier that the period within which a bank statement closing balance must be dated cannot go back more than one month before the date of application.
Given the ambiguity, what assistance can be gained from a purposive construction? It might be thought that either reading is consistent with the expressed purpose behind this provision, namely to make allowance for the difficulty of proving a new requirement introduced in rapid fashion without having alerted would-be student applicants.
Ultimately, therefore, it comes down to considerations of transparency. In our view, given this ambiguity, applicants could not be blamed if in response they had submitted a single bank statement within that month not necessarily showing funds of £800 or over for all of that month. If the transitional provisions had meant to require applicants to show they held £800 for a whole month, they would have said so. That being the case, the wording should be read as requiring only that an applicant produce a bank statement showing a closing balance of £800, the date of that closing balance falling on any date within the period of one month prior to the date of application. On that interpretation it is possible to envisage cases in which the applicant had only held £800 or over for one day, although he or she may be able to show that that amount was held for more than one day.
There is still the matter of what is meant by "closing balance"? Does it mean that what is required is a bank statement showing an end balance of £800 or over (meaning the last balance shown on the statement)? Or does it mean a bank statement showing that on at least one day of the daily entries recorded there was a daily closing balance of £800 or over? If it were the latter it would not necessarily matter if the end-balance shown were less than £800. If it were the former it would not matter that, for example, the last balance given was the only one on which an applicant could show £800 or over. Normal usage, as we understand it, is to construe "closing balance" as meaning the balance that is carried forward to the next statement. "Closing balance" is normally distinguished from "daily closing balance". Since it would be theoretically possible for an applicant to produce a single bank statement showing a closing balance on any date within the previous month, it may be that in practice there is little difference between the two possible interpretations. For that reason we think the approach should be to follow normal usage.
The amount of £800: must it be shown on each and every day of the three month period?
Except in the form of general calls for a purposive construction, none of the representatives in the three cases before us sought to argue that the requirement to show £800 in personal savings over a three month period could be met by applicants whose savings dipped below that figure for one or more days. In our view such argument would have been futile in any event. It is true that neither para 245Z(e) nor Appendix C states in terms that applicant must show his or her personal savings have always been at the level of £800 or more over the three months. But by virtue of the fact that they do cross-refer to the Policy Guidance to establish the relevant period of time and the relevant specified documents, we think that in this specific context it is justified to use the Policy Guidance as an aid to interpreting what is mean by an applicant "having had" the "level of funds" for the requisite period.
In adopting this approach we are conscious that in relation to internal Home Office policy instructions and specific matters of guidance not identified in the Immigration Rules, the position is that they are not to be used as an aid to construction: see ZH (Bangladesh ) [2009] EWCA Civ 8 para 32. However, it seems to us that the express linkage made by the Immigration Rules to what the Policy Guidance has to say about the period of time and documents needed to evidence that, necessitates a different approach.
We recognise, focussing on the Policy Guidance, that it does not specify an "always" requirement in every place where it is dealing with the funds requirement. For example, at paras 48(6) and 82, which set out the requirements for the award of points for initial applicants, it is noted that "Applicants for leave to remain in the United Kingdom must have £800 of available funds" (at para 90 the wording is "must have at least £800 of personal savings"). But at para 96, which is one of the provisions of the Policy Guidance specifying what documents are required to evidence the maintenance requirement, it is stated at subpara 1. that personal bank or building society statements "should clearly show" …[that] "the balance must always be at least £2,800 or £800, as appropriate." (emphasis added). Earlier on in the same paragraph it is explained that the respondent will not accept statements which simply show the balance in the account on a particular day "as these documents do not demonstrate that applicants hold sufficient funds for the full period required.". In our view these provisions are inextricably linked to what the Immigration Rules require and to seek to read them down in some way would be to undermine the Rules.
Even if, contrary to what we have found, a purposive construction of the Maintenance (Funds) requirement were thought apt, it would not necessarily follow, in any event, that it would be appropriate to excuse any dips below £800 since it is clearly seen as the minimum amount necessary to ensure self-support (the Policy Guidance refers to applicants showing they have "at least" £800 [£2,800 in out of country cases]; it is not an optimal figure.
Nature of the applicant's control over the funds
Unlike the rules governing businesspersons, applicants under Tier 1 are permitted to demonstrate they meet the maintenance requirement even when their personal savings of £800 or more are held in a joint account. Nothing is said about this in the very first or current version of the Policy Guidance, but in the second (at para 93), third (at para 100) and fourth versions (at para 100) (see para 14 above) of the Policy Guidance it was expressly stated that if an applicant wishes to rely on a joint account as evidence of available funds, he/she must be named on the account along with one or more other named individuals. We think that if the latest Policy Guidance intended to adopt a different approach from that adopted in its three predecessor versions, it would have said so.
Given that the Immigration Rules do not impose a requirement of personal savings in the applicant's name only and the Policy Guidance does not purport to impose such a requirement either, we see no reason to preclude reliance on a joint account.
Geographical location of savings
There is nothing in the Rules or the Policy Guidance which prevents an applicant meeting the Maintenance (Funds) requirement by showing personal savings that are held in an overseas bank or building society. It is nowhere said that the statements from a bank or building society specified in 96(i), (ii) or (iii) must be a British or UK bank.
We have considered the possible interpretation that because 96(iv) identifies that documents accepted as evidence can include a "letter from a financial institution regulated by the Financial Services Authority, or in the case of overseas accounts, the home regulator…" this shows that it is only British or UK banks and buildings societies that can be covered by 96(i)-(iii). However, if that had been the intention of the drafters of the Policy Guidance then they would surely have specified that in 96(i)-(iii), particularly given the fact that paras 96(i)-(iv) seek to cover exhaustively the range of admissible types of evidence. It is true, of course, that all British and UK banks are regulated by the FSA, but there are many other types of financial institutions which are covered by the phrase "financial institution": the FSA website mentions, for example, mortgage lenders, insurance brokers and institutions dealing in securitised derivatives.
Here too we see no reason to read the requirements of the scheme more restrictively than do the Rules.
The three appellants
We are now in a position to state our findings on the three appeals before us.
The first appellant
The determination of SIJ McKee allowing the appellant's appeal was vitiated by legal error. That is because even though required by the (post-31 October 2008) Policy Guidance to show funds of £800 or more for the three months immediately preceding the date of application ... (19 November 2008) the evidence this appellant produced covering those three months showed that it was only for half that period that his balance was always £800 or over. For reasons given earlier, the fact that since 19 November he had achieved a three month period during which he held £800 or over could not assist him. The SIJ was wrong to reason that s.85(4) could shift the relevant three month period to align with matters as they stood at the date of hearing. He overlooked that the decision in this case contained an historic test tied to the date of application and so "the substance of the decision" had to relate to that time period.
It follows from our earlier analysis that the decision we must substitute for that of the SIJ is to dismiss the appellant's appeal.
The second appellant
Because the second appellant applied before 31 October 2008, her application fell under the transitional provisions set out in the version of the Policy Guidance covering that period. Following our earlier analysis, that meant that she only had to produce a single bank statement dated somewhere between 29 September 2008 and 29 October 2008 (the latter being the date of her application) showing a closing balance of £800. Accordingly the IJ erred in law in considering that the applicant had to show she held £800 or more for a period of one month immediately preceding the application. The IJ's view that s.85(4) limited him to taking into account "only… circumstances appertaining at the time of the hearing" appears to suggest, wrongly, that pre-hearing circumstances are irrelevant. But that aside, the very thing he did in this determination was ignore the date of hearing evidence in the form of the appellant's further evidence as to her personal savings during that period.
However, it remains to consider whether these errors were material. Mr Tufan submitted that the IJ could not be said to have materially erred in law in dismissing the appeal, since even if only production of one bank statement showing a closing balance dated within a month of the date of application (29 October 2008) was required, the second appellant had failed to comply with that requirement, as the bank statements she submitted only covered dates in September (10 th -25 th September) which were before the earliest possible date allowed, namely 29 September 2008. However, as already noted, it is not in dispute that subsequent to her application and prior to the hearing before the IJ she had submitted further bank statements covering the period 29 September-29 October 2008. They include statements showing a closing balance of over £800 within the latter period. The second appellant was entitled to expect the IJ to have acted under s.85(4) of the 2002 Act and to have taken this further evidence into account. Accordingly the IJ's legal error was material. Since the second appellant had satisfied the transitional requirements for Maintenance (Funds) in full, the decision we must substitute for that of the IJ is to allow her appeal.
The third appellant
As noted earlier, at the time of application this appellant had current leave to remain under the IGS scheme. That means that as regards points under "Attributes" and English Language" she stood to be considered under transitional arrangements for persons in the IGS, SEGS or FT:WISS categories: see above paras 21-23. It is not necessary for us to address the general issue of whether transitional arrangements for persons in these categories effectively exempt them from the normal requirements under Appendix C (Maintenance) to show personal savings of £800 over three months. That is because this appellant applied before 1 November 2008 and so in any event fell under the separate transitional arrangements affecting every category of applicant applying before that date.
Having applied on 3 July 2008, the third appellant would have been in a position to meet the maintenance requirement under these transitional arrangements if she had been able to produce a bank statement showing a closing balance of £800 or over on any day falling in the period 3 June - 3 July 2008. But throughout the whole of that period she had no savings. Hence, the IJ was correct to dismiss her appeal. Accordingly his decision must stand. The fact that the third appellant was able to produce evidence during the reconsideration process to show she now had over £800 for a period of three months did not assist her. That is because such post-decision evidence did not relate to any date between 3 June-3 July 2008. The fact that she had a good immigration history and, prior to the new code coming into effect had been here lawfully for just over 10 years, was irrelevant.
.
Article 8 ECHR
Article 8 was not raised in the first appellant's grounds of appeal and, having allowed the appeal under 245Z(e), SIJ McKee understandably did not address it in his determination. In the second appellant's case we have allowed her appeal under para 245Z(e) and it is hence unnecessary to consider the Article 8 grounds. In the case of the third appellant, the order for reconsideration specifically precluded the Article 8 grounds and we see no reason to re-open the matter. Nothing said in this case, therefore, deals with the extent to which decisions refusing applicants under the Tier 1 (Post Study Work) scheme can be challenged on Article 8 ECHR grounds. We would venture four observations, however.
If we are right in our analysis of the scheme, it is an example of new-style Immigration Rules whereby the Secretary of State has set down rigorous criteria which treat transparency and efficiency as key values and are so formulated that there are bound to be hard cases or "near-misses" that fall through the net. The example we gave earlier of a person who meets all the requirements save for having his or her personal savings fall below £800 even for one day during the requisite three month period is in point. As we know from the case of GOO , one response the Secretary of State may make to challenges to the stringency of such Rules would be to point out that there is always the possibility that the respondent will decide in the exercise of her residual discretion to grant limited leave in this category notwithstanding failings of this kind. Of course, it might be said that the Policy Guidance rather limits the forms such an examination outside-the-rules might take, at least in the context of an appeal, since its final paragraph makes clear that administrative review is not available in in-country appeals. However, unlike the situation in GOO , where their Lordships rejected the respondent's invocation of her power of residual discretion and saw scope (based on the acquis of relevant law) for a more liberal construction of evaluative terms such as "satisfactory progress" contained within the Rules, there appear to be no similar evaluative terms within the Tier 1 (Post-Study Work) scheme.
Secondly, Article 8 is not to be equated with an obligation to take into account compassionate circumstances.
Thirdly, whilst it is possible for a student in the course of his or her studies (and part-time working, if applicable) to have developed over time ties with the community that amount to significant elements of a private life within the meaning of Article 8 (a student may also have maintained or developed incidental family life ties here), they are persons who have come to the UK for a limited purpose and with no expectation of being able to stay except by meeting the requirements of the Immigration Rules. They do not thereby acquire a right to remain in the UK despite the Immigration Rules. A refusal under the Tier 1 (Post-Study) scheme may mean they fail to make their immigration prospects better; it does not mean they have been made worse.
Fourth, when the Tier 1 (Post-Study) Work scheme was introduced the government decided it was appropriate to make transitional arrangements of two kinds: one so as to ensure that those students who had leave under pre-existing schemes for highly skilled students – for IGS, SEGS and FT: WISS – had a chance to apply under the new scheme; the other so as to ensure that all applicants who had had little time to adjust their financial circumstances so as to comply with the new requirement to show they held £800 for three-months immediately preceding their application were not unfairly disadvantaged. Put another way, the new Post-Study Work scheme have already incorporated provisions designed to assist applicants who might otherwise have been disadvantaged by the terms in which and the speed with which they were introduced. In respect of the transitional arrangements affecting maintenance, they have enabled applicants to know sufficiently in advance the requirements they were expected to fulfil.
Signed
Senior Immigration Judge Storey