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Immigration Appeals gone for most applications
Immigration Appeals severely restrictedFrom 6 April 2015, legislative changes have restricted the ri ...
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Evidential flexibility now in Immigration Rules!
Good news for people applying under the Points Based System (including Tier 1 General, Tier 1 entrep ...
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Tier 1 and Tier 2 appeal successes


Tier 2 - issue of whether the position being sponsored for is a "genuine vacancy"

Over the last few months we have been seeing more and more refusals of Tier 2 visa applications where the reason given is that the position the applicant is being sponsored for is not a genuine vacancy. The applicants in these cases usually otherwise meet the requirements of the Tier 2 rules. The reasons given for these findings, usually made without interviewing the applicant or the sponsor, vary. Common examples, however, are that the applicant does not have sufficient work experience (even though in the case in question the position was a graduate position), the size of the sponsor's business does not justify the need for further employees and that the salary being paid is at the minimum required for the job code being used.

Our opinion in the majority of these cases is that the Home Office's decisions do not give adequate reasons for their finding that the position is not genuine. The Home Office do have the discretion to undertake a genuineness test in Tier 2 applications, but in many of these cases the genuineness assessment appears to have been made with little consideration of the full circumstances of the case. When this is considered against the backdrop that the rationale for the Tier 2 system was to provide the onus on sponsors to undertake more responsiblities and that in return they would be considered "highly trusted", such decisions are open to challenge in our opinion. The difficulty currently is that the right of appeal has been taken away from these cases and so any challenge to the decisions must be made initially by an administrative review and then if the decision is upheld, by Judicial Review to the Upper Tribunal. A Judicial Review is more difficult to succeed with than the old fashioned appeal under the Immigration Rules. Previously a Judge could find that the Home Office's decision was not in accordance with the Rules on the balance of probabilities but a Judge must now find a decision to be unreasonable or irrational and apply public law principles. This requires them to find that the decision was so irrational or unreasonable that no reasonable decision maker could have made such a decision.

We have nevertheless had some success with these cases. The Tier 2 refusal is usually upheld at administrative review but there is more scope for success through negotiation with the Home Office after a Judicial Review has been submitted. We are hopeful that we can take one of these cases through to a full Judicial Review hearing and potentially argue that a decision finding a position to be not genuine when a highly trusted sponsor has declared the position to be genuine requires more justification than the simple speculation found in these refusals. If you have had a refusal along these lines, please feel free to contact Adam Reid at our offices as he will be happy to discuss your case with you and to advise you on your options.  


October 2015




Tier 1 entrepreneur - no genuine intention to establish a business – Judicial Review

We are seeing a continuation of the Home Office’s practice of refusing large numbers of Tier 1 (entrepreneur) applications. Whilst there have been less refusals on the minor documentary grounds seen in 2013 (for example, missing contact details in documents / missing names from adverts) due to the amendments to paragraph 245 of the Immigration Rules bringing documentary flexiblity into the Rules, the main reason for recent refusals has been on “genuineness” grounds. Decision makers typically interview applicants and then use the answers provided in interview to provide reasons why it is not accepted that the applicant genuinely intends to establish a business.

Where a Tier 1 (entrepreneur) application is poorly prepared, for example, with no business plan submitted, or with the applicant unable to give a detailed account of their planned business at interview, then this does give the Home Office significant scope to refuse entrepreneurs under these rules. We have seen cases, however, of applicants who have submitted business plans and have provided comprehensive details of their plans including market research conducted at interview and nevertheless been refused. In these cases there may be scope for challenging the Home Office’s decision on grounds that their genuineness finding is irrational or unreasonable. Whilst the unreasonableness threshold in Judicial Review applications has been set high by the Courts, the Home Office will sometimes settle borderline cases without the need to lodge the Judicial Review or prior to the matter being put before a Judge. If you have a right of appeal to the Tribunal then the decision must have been made on the balance of probabilities.

If you have recently had a Tier 1 (entrepreneur) application refused feel free to contact us and we will give you a free initial opinion on your options.

January 2015


Tier 1 Entrepreneur appeal success - skill level of business or skill level of individual role within the business?

We recently won an appeal where the Home Office refused a tier 1 entrepreneur application because they stated that the client’s core business was not at the appropriate skill level.

The client had given her job title / SOC code as a customer services manager but the Home Office concluded that as the companies main business was the selling of products and that as the selling of these products was not regarded as sufficiently skilled then she should be refused.

This is a tricky issue that does seem to come up often in entrepreneur applications. The Tier 1 rules (Appendix A) do indeed say that “work” for the purposes of the rules means “core service” provided by the business. Most entrepreneurial enterprises, however, will involve the selling of a product or service and at the same time the SOC codes are designed to cater for individual roles within businesses as opposed to the overall business activity. Furthermore, the Rules also state that an applicant must provide the “occupation you are working in” and that “you must make a decision based on your own duties and responsibilities” – so there is in our opinion some conflict between these two ideas. In many cases a business will essentially be selling a certain product (after all, celebrated entrepreneurs such as Lord Alan Sugar / Sir Richard Branson both ran businesses which essentially sold products) and an individual may have many roles within the business.

We argued that there must be scope within the rules for an individual to break down their own role / job title within the business and to elect an SOC code based on this (see the Tier 1 entrepreneur application form which asks for the applicant’s “job title”). We also argued that the principle of one “core service” is in the case of many businesses an oversimplification as a business can be comprised of a combination of services. The Judge accepted our arguments and concluded that the client’s role within the business was sufficiently skilled and that the business’s core service was also sufficiently skilled. Her appeal was allowed.

December 2014



Refusal of a Tier 1 entrepreneur application – bank statement missing from a sequence

Our client contacted us after their Tier 1 entrepreneur application was refused because they had not provided sufficient evidence of maintenance. Specifically, their bank statements did not cover a 90-day period ending within a month of the date of their application. Our client accepted that the bank statements submitted ended 32 days prior to the date of their application. We argued, however, that paragraph 245AA of the Immigration Rules, which provides for documentary flexibility in some cases, should have been applied. In particular, because our client had omitted a bank statement that was part of a sequence of documents, he should have been contacted and given an opportunity to provide the final statement.

The Home Office were represented at the appeal and argued that 245AA does not cover the situation where someone provides 3 months bank statements and omits the more recent statement. They said that the meaning of 245AA should only apply where the missing document is from the middle of a sequence, for example, where someone provides statements from January – July but April is missing.

The Judge did not accept this narrow interpretation of the rule and allowed our client’s appeal on the basis that the Home Office’s decision was not in accordance with the Immigration Rules. The Judge found our client should have been contacted and given an opportunity to provide an updated bank statement.

Please note that since this decision, the documentary flexibility provisions of the Rules have been widened further. If you have recently been refused under the Points Based System for documentary reasons, you may be able to challenge this decision. Please contact us and we will provide a free preliminary opinion.

October 2014




Tier 1 (entrepreneur) refusals


Since the end of last year and the December changes to the Immigration Rules, the UKBA appear to have decided that too many Tier 1 entrepreneur applications were made. They subsequently tightened up the rules to bring in a “genuine business” test and also appear to be refusing many of the entrepreneur applications. We have seen a number of entrepreneur refusals due to missing documents (such as advertisements / evidence of being a director / trade contracts) and also on grounds that the proposed business is not at the appropriate skill level.

We are confident that many of these decisions can be successfully challenged in the Tribunal. Although new documentation cannot be submitted by someone to show that they meet the points requirements in an entrepreneur appeal, it may be possible to argue that the UKBA have not acted correctly by failing to request further documentation. This will be the case, for example, where a document was submitted in the wrong format, or where it was one of a sequence of documents. It may also be possible to argue that the UKBA have not applied their evidential flexibility policy which undertakes to generally contact applicants to request missing documentation.

Contact us if you need assistance with a Tier 1 entrepreneur application or appeal. If you email the decision to us at enquiries@advisasolicitors.co.uk we will give you an opinion free of charge.

April 2014


Tier 1 - earnings evidence not verified

During 2012 we won a number of appeals where applicant's Tier 1 extension applications were refused due to the UKBA's inability to verify documents. In some cases the refusal alleged that the documents were false and in others the refusal simply stated that they could not be verified.

In all of these cases the Judges were prepared to take a sympathetic view of the evidence. We were able to provide updated evidence as to the authenticity of the documentation and our client's generally gave credible evidence. These cases were also assisted by the UKBA's verification reports which were vague and arguably unreliable. In one case the report was not provided in evidence at all.

December 2013


Tier 2 - sponsor errors

During 2012 we dealt with a number of appeals resulting from Sponsor errors in the Certificate of Sponsorship - often relating to the SOC code or rate of pay.

In one appeal, our client's Tier 2 application was refused as the SOC code provided by their sponsor was not graduate level. The Sponsor had made an error and given the wrong SOC code. The Judge accepted our argument that he was able to find that our client's actual job fell within a graduate level SOC code as opposed to the code provided by the sponsor in their Certificate of Sponsorship.

September 2013


Uplift Ratio

Our client's application was refused on the grounds that the uplift ratio could not be applied to some of his earnings, which were from overseas. We prepared a detailed spreadsheet, setting out all of our client's income from within the UK and from overseas, and provided evidence to show what earnings had been made whilst physically overseas. The UKBA tried to argue at the appeal that it was not possible to apply the uplift ratio when the client was based in the UK, but the Judge accepted that he was carrying out work when he travelled overseas, and could therefore apply the uplift ratio to these overseas earnings. This meant that his earnings went above the required threashold and the appeal was allowed.

March 2012

Pankina Policy Cases

Following the case of Pankina in which the Court of Appeal decided that the maintenance rules were not part of the Immigration Rules, the UKBA implemented a policy which has attempted to review prior maintenance refusals for certain individuals. The Policy is narrowly worded and arguably fails to deal with many cases which fall within the Pankina ambit. For example, the Policy will only assist individuals who were refused on maintenance grounds and who are now legally in the UK.

We have in recent weeks successfully challenged decisions of the UKBA refusing to change their decisions under the Policy. Although we do not expect the Policy to be changed there is certainly scope for arguing that more cases should be reconsidered following Pankina.

If you have been refused under the previous Tier 1 Rules (maintenance or otherwise) and think that the decision in Pankina could assist you please contact us and we will advise you whether or not we can help.

November 2010


Tier 4 Judicial Review success

Our client's Tier 4 application was invalidated on the grounds that his photographs did not meet the mandatory specifications. He submitted a fresh application but by that time, the maintenance requirement had changed and he could no longer show sufficient maintenance funds. We initiated JR proceedings on the basis that invalidation of his initial application was unreasonable and irrational, using the case of Forrester to support our arguments.

We have now been granted permission by the High Court Judge, who specifically referred to the case of Forrester in his reasons for granting permission. We are hoping that the UKBA will now back down and reconsider our client's initial application but we will update this section once we know more.

October 2010

Judicial Review update

We are continuing to successfully challenge decisions of the SSHD using the judicial review procedure.

We have seen so many cases where the SSHD has invalidated an application, when in fact the application was valid. The usual reasons for invalidaton are that the photographs were not acceptable or the correct fees were not paid. In most of our cases, we have managed to demonstrate that the decision to invalidate was incorrect and have persuaded the SSHD to reconsider the application - and grant it.

We have also seen a number of refusals where the client has not been given a right of appeal. In this situation, the only remedy is judicial review if you believe that the SSHD's decision was wrong. It is usually advisable to challenge such a decision, because you never know when the Rules might change, and you may suddenly find that you are no longer eligible to make a fresh application. But remember, there is a 3-month time limit from the date of the original decision in order to commence JR proceedings.

September 2010


August 2010 maintenance requirement update

Well, our optimism regarding the defeat of the maintenance rules finally paid off! In July, the Court of Appeal concluded in the case of Pankina that the 3-month maintenance requirement as contained in the Policy Guidance was ultra vires, as it should have been part of the substantive immigration rules and thereby approved by Parliament.

If your Tier 1 application was refused solely on maintenance grounds, you may now be eligible to have your application reviewed. Contact us if you require more information in this regard.

However, remember that as of 23 July 2010, the 3-month Maintenance requirement was incorporated into the Immigration Rules, so any applications made after that date will need to meet the full maintenance requirement.


Cases challenging the legality of the 3-month maintenance rule - Update - January 2010

We have 3 appeal cases where we are seeking to challenge the fairness / legality of the Tier 1 general and post-study maintenance rules. During January, two of these cases came before Senior Judges in the Tribunal and as a result they have now been stayed pending the outcome of the lead case which according to the Judge, is due to be heard in the Court of Appeal by May 2010.

We are optimistic that the maintenance rules can be defeated and we will keep you updated.


Tier 1 appeal victory / client also granted ILR!

One of our clients had been refused under Tier 1 for using business bank statements as evidence of his maintenance. Since the date of the refusal, he had also become eligible to apply for settlement as he had been in the UK for 5 years on a combination of work permit / HSMP leave.

We argued at the appeal that the business bank statements / bank letter met the requirements of the policy guidance as they did show his name as required.

We also used recent AIT caselaw clarifying the Tribunal's jurisdiction to allow an appeal under any immigration rule, even where this wasn't necessarily the rule which the appellant applied under.

The Judge allowed the appeal under Tier 1 and also under the 5-year settlement provisions and our client is waiting for be granted Indefinite leave to remain.

December 2009


Self-employed Tier 1 success

Self-employed applicants often have problems proving their earnings, particularly if they are paid in cash. Our client was refused on the basis that his payslips and bank statements did not exactly match.

We argued on appeal that the guidance does not require earnings evidence to match exactly but to corroborate or support each other. The Judge found our client credible and accepted our arguments, allowing the appeal within a few days.

December 2009


Tier 1 update - Maintenance funds and fresh Applications - October 2009

We are still challenging the maintenance requirement in a number of our cases, on the basis that this requirement is "ultra vires". The Immigration Rules do not specify that the relevant funds must have been held in your account every day for the last 3 months. This requirement was only introduced via the Home Office Policy Guidance, which has received no Parliamentary approval. We are hoping that a decision on this issue will be forthcoming in the next few weeks.

In the meantime, many applicants are choosing to submit a fresh applicaton, which is possible even if your leave has now expired, as long as your last grant of leave was in one of the acceptable categories. By booking a same-day slot at the Home Office, we can help you to minimise any time spent in the UK unlawfully, but we strongly advise you to take legal advice before embarking on this course of action.


A&E Doctor wins appeal under Article 8

One of our clients had been working as a middle grade doctor in an Accident and Emergency ward in a UK hospital. Despite being in the UK since 2002 and having had two children born in the UK, he was refused on maintenance grounds as his accounts fell below the required amounts on a number of ocassions during the 3-months prior to making his application.

Among other things, we argued that the decision of the UKBA breached our client's right to private life in the UK and also that it was not in the public interest to remove someone whose occupation is classified as a shortage occupation by the Government.

The Judge agreed with our arguments and our client's appeal was allowed. The Home Office have not appealed.

23 September 2009


Tier 1 Appeal update - August 2009

The Immigration Judges continued to allow Tier 1 appeals on the basis of new evidence but only where the evidence shows that appellants met the requirements at the date of the application.

Following the case of NA & Others (see our article) Judges seemed more reluctant to allow challenges to the legality of the maintenance requirements.


Tier 1 Judicial Review sucesses

In a number of cases throughout August and September our clients have been refused but have not had a right of appeal due to having either had continuing leave to remain or otherwise because they submitted their application after their leave expired.

We have challenged many of these decisions by Judicial Review action and in almost all of the cases the UKBA have reviewed their decision and granted our client leave to remain. Examples of these successes have been:

- Duplicate Barclays bank statements were not accepted as evidence of maintenance as the bank's logo was not on the statement;
- Recent evidence of maintenance (from the month prior to the date of application) not submitted with the initial application;
- Insufficient evidence of maintenance;
- Joint bank accounts not accepted.

If you have been refused and you feel that the decision is unfair but you do not have a right of appeal let us know. The UKBA are often willing to concede cases to avoid being taken to the High Court. Feel free to call us to discuss your case.

September 2009


Tier 1 Judicial Review success

Following the threat of legal action in the High Court, UKBA have just agreed to overturn their previous decision to refuse our client’s Tier 1 application.

Our client had mistakenly submitted the wrong evidence of maintenance funds. Her application was therefore refused and she did not have a right of appeal, nor was she able to submit a fresh application as she does not have a Masters Degree.

We submitted a detailed Letter before Action, threatening to initiate JR proceedings against UKBA if they did not back down. In a response received on Friday, UKBA accepted the new evidence of Maintenance funds and agreed to grant our client’s Tier 1 application.

17 July 2009


Premium Bonds accepted as evidence of maintenance - Appeal allowed

Our client's Tier 1 application had been refused on the basis that he did not have the required funds (£1333 in his case). Although he did not have the funds in a UK bank account, he did hold substantial savings in NS & I savings accounts. The UKBA did not accept these funds.

We argued on appeal that the Policy Guidance does not expressly exclude Premium Bonds and further that it cannot have been intended by Parliament that such funds, which directly benefit the UK economy, should be excluded from list of accepted documents under the Tier 1 maintenance rules.

The Judge agreed that the Policy Guidance did not expressly exclude Premium Bonds and allowed the appeal on the basis of the funds held in these accounts.

10 July 2009


IGS / PSW transitional arrangements - appeals update

Through May and June we have won 3 further appeals where we have successfully argued that individuals applying to switch from the IGS into the Post-study work scheme do not have to meet the maintenance requirements. This means that we now have a total of 5 successful decisions on this issue and believe that this has created a strong semi-precedent which will assist us to continue winning these cases.

In each of the cases the Home Office have either not been represented or else provided very little assistance as to what the actual transitional arrangement is or any explanation of their emails. In the absence of any evidence from the Home Office, Immigration Judges have accepted that the transitional arrangements do extend to the maintenance requirement. Their findings have been based on the UKBA website and on emails from UKBA.

May-June 2009


Tier 1 (general) - tax document issue - Appeal allowed

Our client's Tier 1 application was refused on the basis that her tax documents (which in her country went from Jan-Dec) did not cover the exact period being claimed. Our client had provided tax documents from two separate years which did cover the claimed period but also covered other months outside of the period. She also provided payslips but was unable to provide bank statements.

We argued that the tax documents should have been accepted as they did cover the period being claimed. We argued that reference to the exact period in the Tier 1 guidance was not a strict requirement but merely a "suggestion" and that it would have been irrational in the current case to not consider the evidence as corroborating the earnings claimed.

The Judge agreed with our arguments and allowed the appeal on the basis that the tax documentation was sufficient evidence and corroborated with the payslips.

June 2009


Tier 1 (general) - maintenance evidence not verified - Appeal allowed

Our client's Tier 1 application was refused on the basis of her maintenance documents. It was stated that efforts made to verify bank statements with the bank in China had been unsuccessful and so the documents were not accepted.

The basis of the refusal to accept the bank documents was a phone call from the British Embassy in China to the bank in question. Although the bank did confirm our client's details, the UKBA official raised other concerns with the information provided. We argued that the verification report was insufficient evidence that the documents were not genuine and further provided additional evidence from the bank to support the appeal.

The Judge accepted that the bank documents were genuine and allowed the appeal.

May 2009


Tier 1 (post-study worker) - Appeal allowed

Second appeal allowed on the basis of the argument that individuals applying to switch from the IGS to the PSW do not need to meet ANY of the points requirements under the transitional provisions.

The main difference between this case and the case below was that this client did not receive emails directly from the Home Office but was still found to be entitled to rely on the policy.

April 2009


Tier 1 (general) - Appeal allowed - further evidence of funds from client's home country provided at the appeal in order to satisfy the maintenance requirements

Our client was refused under the maintenance provisions due to the fact that her UK bank accounts dipped below £800 for less than 1 week during the relevant 3-month period prior to the application.

We provided new evidence of her bank account in China at the appeal stage in the form of bank statements and a bank letter. There was no objection from the Home Office and the Immigration Judge was satisfied that the new statements were sufficient to show that our client met the maintenance requirements.

April 2009

Tier 1 (post-study worker) - Appeal allowed - Judge accepted that transitional arrangements may mean that applicants from the IGS do not need to satisfy the maintenance requirements

Our client had been granted 1 year on the IGS and applied to switch into the Tier 1 (post study worker) category. He was confused about the transitional provisions applying to IGS applicants and so contacted the Home Office. He received emails from the Home Office informing him that individuals on the IGS would automatically be granted points in all categories including maintenance. He did not have £800 for 3 months prior to making his application and the Home Office then refused his application.

Despite some parts of the Tier 1 (psw) guidance making it clear that all applicants must meet the mainteance requirements, some parts are also ambiguous. The Immigration Judge accepted that our client had a legitimate expectation that he would be granted points for maintenance particularly due to having received emails from the Home Office informing him of this. His appeal was allowed.

We are unsure as to how far these arguments can be extended but hope to establish a precedent that can be used by all IGS individuals who are refused on maintenance grounds.

March 2009


Tier 1 - insufficient evidence of maintenance - Appeal allowed

We have recently won 3 different appeals for clients who were refused for failing to meet the provisions of the maintenance requirements of the Tier 1 rules.

In two cases our clients failed to submit 3-months of bank statements. In the other case, our client's bank statements were more than 1 month prior to the date of her application.

In each of these cases we submitted further bank statements to the Immigration Judge and these were accepted as sufficient for the appeal to be successful. Immigration Judges continue to accept that further evidence is currently admissible in Tier 1 appeals.

A number of Judges have also commented that they consider the maintenance requirements to be overly strict and unfair. We believe that there is considerable room to successfully challenge the rules even in cases where applicants do not have the required funds for the 3-month period. We have a number of these appeals pending and hope to bring news of a successful outcome shortly.

Feb - March 2009

Post-Study Application - BVC not a "relevant academic qualification"

A budding Barrister whose Post-Study Worker application was turned down by the home office as they did not consider his Bar Vocational Course to be a “relevant academic qualification” has just won his appeal. We submitted detailed evidence to prove that the BVC is a Postgraduate Diploma and is clearly an acceptable qualification under the Immigration Rules. The Judge agreed that it made no sense whatsoever to exclude this qualification and others like it such as the ACCA. Here is yet another example of strict and unreasonable decision-making on the part of the home office which was fortunately overturned through good appeal preparation, innovative legal arguments and a sensible Judge.

Jan 2009

Tier 1 - Tax document not accepted - Appeal allowed

Our client had submitted payslips and a tax document to prove her earnings for a period prior to some years of full-time study. The Home Office had refused her application on the grounds that the tax document she had provided had been stamped by her employer and was therefore not a different source of earnings to her payslips.

We made legal submissions to the Immigration Judge and argued that although the tax document was stamped by the applicant's employer, it had still gone through the official tax authority and that if its authenticity was challenged the Home Office should have made attempts to verify this. We also submitted evidence to prove the authenticity of the document.

The Judge accepted the arguments and the authenticity of the tax documents and was satisfied that our client met the requirements of the Immigration Rules. The Judge allowed the appeal on the spot.

November 2008


Tier 1 - Post-Study Worker - Appeal allowed

Our client's post-study worker application was refused as the letter he provided from his University did not state the date of award of his degree or the date on which his course ended.

We made submissions before the Immigration Judge and argued that the document submitted was sufficient. We claimed that the requirements of the Home Office Policy guidelines were not strictly law and so should not be construed in a manner more restrictive than the Immigration Rules themselves. In the alternative we submitted a new letter from the University clearly stating the date of award and argued the admissibility of this evidence.

The Immigration Judge accepted the new evidence and allowed the appeal on the day.

November 08


Tier 1 - whether previous earnings earned in breach of work permit restrictions - Appeal allowed

Our client's application was refused as it was alleged that his previous earnings had been made in breach of his work permit conditions as he had been acting in a self-employed capacity.

We argued that our client's contract of employment and his conditions of work showed that he was truly an employee. We adduced substantial evidence of his working arrangements, the legal distinctions between employee / contractor and a report from an employment barrister who had agreed that our client was an employee.

The Immigration Judge accepted our arguments and was impressed with the report from the employment barrister. Our client's appeal was allowed.

August 08



Tier 1 - self-employed applicant - insufficient evidence of earnings - Appeal allowed


Our client was self-employed and provided evidence of substantial earnings over the previous year by providing invoices and his audited accounts.

The Home Office had refused his application as the income from the invoices did not exactly match the profits shown in the accounts.

We argued before the Immigration Judge that he had provided two sources of the evidences as required by the Tier 1 guidance and that to require more evidence was unreasonable. We also argued that the dictionary definition of the word "corroborate" does not mean that two things must match each other exactly but that they should merely support each other. Invoices of a business would never be the exact profit figure as expenses had to be taken into account.

We were also able to adduce new evidence in the form of business bank statements.

The immigration Judge agreed with our arguments and allowed our clients appeal.

July 08

If you would like us to help you with a Tier 1 application or to challenge a refusal, email us at enquiries@advisasolicitors.co.uk


Tier 1 (entrepreneur) refusals

Since the end of last year and the December changes to the Immigration Rules, the UKBA appear to have decided that too many Tier 1 entrepreneur applications were made. They subsequently tightened up the rules to bring in a “genuine business” test and also appear to be refusing many of the entrepreneur applications. We have seen a number of entrepreneur refusals due to missing documents (such as advertisements / evidence of being a director / trade contracts) and also on grounds that the proposed business is not at the appropriate skill level.

We are confident that many of these decisions can be successfully challenged in the Tribunal. Although new documentation cannot be submitted by someone to show that they meet the points requirements in an entrepreneur appeal, it may be possible to argue that the UKBA have not acted correctly by failing to request further documentation. This will be the case, for example, where a document was submitted in the wrong format, or where it was one of a sequence of documents. It may also be possible to argue that the UKBA have not applied their evidential flexibility policy which undertakes to generally contact applicants to request missing documentation.

Contact us if you need assistance with a Tier 1 entrepreneur application or appeal. If you email the decision to us at enquiries@advisasolicitors.co.uk we will give you an opinion free of charge.

April 2013


Tier 1 - earnings evidence not verified

During 2012 we won a number of appeals where applicant's Tier 1 extension applications were refused due to the UKBA's inability to verify documents. In some cases the refusal alleged that the documents were false and in others the refusal simply stated that they could not be verified.

In all of these cases the Judges were prepared to take a sympathetic view of the evidence. We were able to provide updated evidence as to the authenticity of the documentation and our client's generally gave credible evidence. These cases were also assisted by the UKBA's verification reports which were vague and arguably unreliable. In one case the report was not provided in evidence at all.

December 2012


Tier 2 - sponsor errors

During 2012 we dealt with a number of appeals resulting from Sponsor errors in the Certificate of Sponsorship - often relating to the SOC code or rate of pay.

In one appeal, our client's Tier 2 application was refused as the SOC code provided by their sponsor was not graduate level. The Sponsor had made an error and given the wrong SOC code. The Judge accepted our argument that he was able to find that our client's actual job fell within a graduate level SOC code as opposed to the code provided by the sponsor in their Certificate of Sponsorship.

September 2012


Uplift Ratio

Our client's application was refused on the grounds that the uplift ratio could not be applied to some of his earnings, which were from overseas. We prepared a detailed spreadsheet, setting out all of our client's income from within the UK and from overseas, and provided evidence to show what earnings had been made whilst physically overseas. The UKBA tried to argue at the appeal that it was not possible to apply the uplift ratio when the client was based in the UK, but the Judge accepted that he was carrying out work when he travelled overseas, and could therefore apply the uplift ratio to these overseas earnings. This meant that his earnings went above the required threashold and the appeal was allowed.

March 2011

Pankina Policy Cases

Following the case of Pankina in which the Court of Appeal decided that the maintenance rules were not part of the Immigration Rules, the UKBA implemented a policy which has attempted to review prior maintenance refusals for certain individuals. The Policy is narrowly worded and arguably fails to deal with many cases which fall within the Pankina ambit. For example, the Policy will only assist individuals who were refused on maintenance grounds and who are now legally in the UK.

We have in recent weeks successfully challenged decisions of the UKBA refusing to change their decisions under the Policy. Although we do not expect the Policy to be changed there is certainly scope for arguing that more cases should be reconsidered following Pankina.

If you have been refused under the previous Tier 1 Rules (maintenance or otherwise) and think that the decision in Pankina could assist you please contact us and we will advise you whether or not we can help.

November 2010


Tier 4 Judicial Review success

Our client's Tier 4 application was invalidated on the grounds that his photographs did not meet the mandatory specifications. He submitted a fresh application but by that time, the maintenance requirement had changed and he could no longer show sufficient maintenance funds. We initiated JR proceedings on the basis that invalidation of his initial application was unreasonable and irrational, using the case of Forrester to support our arguments.

We have now been granted permission by the High Court Judge, who specifically referred to the case of Forrester in his reasons for granting permission. We are hoping that the UKBA will now back down and reconsider our client's initial application but we will update this section once we know more.

October 2010

Judicial Review update

We are continuing to successfully challenge decisions of the SSHD using the judicial review procedure.

We have seen so many cases where the SSHD has invalidated an application, when in fact the application was valid. The usual reasons for invalidaton are that the photographs were not acceptable or the correct fees were not paid. In most of our cases, we have managed to demonstrate that the decision to invalidate was incorrect and have persuaded the SSHD to reconsider the application - and grant it.

We have also seen a number of refusals where the client has not been given a right of appeal. In this situation, the only remedy is judicial review if you believe that the SSHD's decision was wrong. It is usually advisable to challenge such a decision, because you never know when the Rules might change, and you may suddenly find that you are no longer eligible to make a fresh application. But remember, there is a 3-month time limit from the date of the original decision in order to commence JR proceedings.

September 2010


August 2010 maintenance requirement update

Well, our optimism regarding the defeat of the maintenance rules finally paid off! In July, the Court of Appeal concluded in the case of Pankina that the 3-month maintenance requirement as contained in the Policy Guidance was ultra vires, as it should have been part of the substantive immigration rules and thereby approved by Parliament.

If your Tier 1 application was refused solely on maintenance grounds, you may now be eligible to have your application reviewed. Contact us if you require more information in this regard.

However, remember that as of 23 July 2010, the 3-month Maintenance requirement was incorporated into the Immigration Rules, so any applications made after that date will need to meet the full maintenance requirement.


Cases challenging the legality of the 3-month maintenance rule - Update - January 2010

We have 3 appeal cases where we are seeking to challenge the fairness / legality of the Tier 1 general and post-study maintenance rules. During January, two of these cases came before Senior Judges in the Tribunal and as a result they have now been stayed pending the outcome of the lead case which according to the Judge, is due to be heard in the Court of Appeal by May 2010.

We are optimistic that the maintenance rules can be defeated and we will keep you updated.


Tier 1 appeal victory / client also granted ILR!

One of our clients had been refused under Tier 1 for using business bank statements as evidence of his maintenance. Since the date of the refusal, he had also become eligible to apply for settlement as he had been in the UK for 5 years on a combination of work permit / HSMP leave.

We argued at the appeal that the business bank statements / bank letter met the requirements of the policy guidance as they did show his name as required.

We also used recent AIT caselaw clarifying the Tribunal's jurisdiction to allow an appeal under any immigration rule, even where this wasn't necessarily the rule which the appellant applied under.

The Judge allowed the appeal under Tier 1 and also under the 5-year settlement provisions and our client is waiting for be granted Indefinite leave to remain.

December 2009


Self-employed Tier 1 success

Self-employed applicants often have problems proving their earnings, particularly if they are paid in cash. Our client was refused on the basis that his payslips and bank statements did not exactly match.

We argued on appeal that the guidance does not require earnings evidence to match exactly but to corroborate or support each other. The Judge found our client credible and accepted our arguments, allowing the appeal within a few days.

December 2009


Tier 1 update - Maintenance funds and fresh Applications - October 2009

We are still challenging the maintenance requirement in a number of our cases, on the basis that this requirement is "ultra vires". The Immigration Rules do not specify that the relevant funds must have been held in your account every day for the last 3 months. This requirement was only introduced via the Home Office Policy Guidance, which has received no Parliamentary approval. We are hoping that a decision on this issue will be forthcoming in the next few weeks.

In the meantime, many applicants are choosing to submit a fresh applicaton, which is possible even if your leave has now expired, as long as your last grant of leave was in one of the acceptable categories. By booking a same-day slot at the Home Office, we can help you to minimise any time spent in the UK unlawfully, but we strongly advise you to take legal advice before embarking on this course of action.


A&E Doctor wins appeal under Article 8

One of our clients had been working as a middle grade doctor in an Accident and Emergency ward in a UK hospital. Despite being in the UK since 2002 and having had two children born in the UK, he was refused on maintenance grounds as his accounts fell below the required amounts on a number of ocassions during the 3-months prior to making his application.

Among other things, we argued that the decision of the UKBA breached our client's right to private life in the UK and also that it was not in the public interest to remove someone whose occupation is classified as a shortage occupation by the Government.

The Judge agreed with our arguments and our client's appeal was allowed. The Home Office have not appealed.

23 September 2009


Tier 1 Appeal update - August 2009

The Immigration Judges continued to allow Tier 1 appeals on the basis of new evidence but only where the evidence shows that appellants met the requirements at the date of the application.

Following the case of NA & Others (see our article) Judges seemed more reluctant to allow challenges to the legality of the maintenance requirements.


Tier 1 Judicial Review sucesses

In a number of cases throughout August and September our clients have been refused but have not had a right of appeal due to having either had continuing leave to remain or otherwise because they submitted their application after their leave expired.

We have challenged many of these decisions by Judicial Review action and in almost all of the cases the UKBA have reviewed their decision and granted our client leave to remain. Examples of these successes have been:

- Duplicate Barclays bank statements were not accepted as evidence of maintenance as the bank's logo was not on the statement;
- Recent evidence of maintenance (from the month prior to the date of application) not submitted with the initial application;
- Insufficient evidence of maintenance;
- Joint bank accounts not accepted.

If you have been refused and you feel that the decision is unfair but you do not have a right of appeal let us know. The UKBA are often willing to concede cases to avoid being taken to the High Court. Feel free to call us to discuss your case.

September 2009


Tier 1 Judicial Review success

Following the threat of legal action in the High Court, UKBA have just agreed to overturn their previous decision to refuse our client’s Tier 1 application.

Our client had mistakenly submitted the wrong evidence of maintenance funds. Her application was therefore refused and she did not have a right of appeal, nor was she able to submit a fresh application as she does not have a Masters Degree.

We submitted a detailed Letter before Action, threatening to initiate JR proceedings against UKBA if they did not back down. In a response received on Friday, UKBA accepted the new evidence of Maintenance funds and agreed to grant our client’s Tier 1 application.

17 July 2009


Premium Bonds accepted as evidence of maintenance - Appeal allowed

Our client's Tier 1 application had been refused on the basis that he did not have the required funds (£1333 in his case). Although he did not have the funds in a UK bank account, he did hold substantial savings in NS & I savings accounts. The UKBA did not accept these funds.

We argued on appeal that the Policy Guidance does not expressly exclude Premium Bonds and further that it cannot have been intended by Parliament that such funds, which directly benefit the UK economy, should be excluded from list of accepted documents under the Tier 1 maintenance rules.

The Judge agreed that the Policy Guidance did not expressly exclude Premium Bonds and allowed the appeal on the basis of the funds held in these accounts.

10 July 2009


IGS / PSW transitional arrangements - appeals update

Through May and June we have won 3 further appeals where we have successfully argued that individuals applying to switch from the IGS into the Post-study work scheme do not have to meet the maintenance requirements. This means that we now have a total of 5 successful decisions on this issue and believe that this has created a strong semi-precedent which will assist us to continue winning these cases.

In each of the cases the Home Office have either not been represented or else provided very little assistance as to what the actual transitional arrangement is or any explanation of their emails. In the absence of any evidence from the Home Office, Immigration Judges have accepted that the transitional arrangements do extend to the maintenance requirement. Their findings have been based on the UKBA website and on emails from UKBA.

May-June 2009


Tier 1 (general) - tax document issue - Appeal allowed

Our client's Tier 1 application was refused on the basis that her tax documents (which in her country went from Jan-Dec) did not cover the exact period being claimed. Our client had provided tax documents from two separate years which did cover the claimed period but also covered other months outside of the period. She also provided payslips but was unable to provide bank statements.

We argued that the tax documents should have been accepted as they did cover the period being claimed. We argued that reference to the exact period in the Tier 1 guidance was not a strict requirement but merely a "suggestion" and that it would have been irrational in the current case to not consider the evidence as corroborating the earnings claimed.

The Judge agreed with our arguments and allowed the appeal on the basis that the tax documentation was sufficient evidence and corroborated with the payslips.

June 2009


Tier 1 (general) - maintenance evidence not verified - Appeal allowed

Our client's Tier 1 application was refused on the basis of her maintenance documents. It was stated that efforts made to verify bank statements with the bank in China had been unsuccessful and so the documents were not accepted.

The basis of the refusal to accept the bank documents was a phone call from the British Embassy in China to the bank in question. Although the bank did confirm our client's details, the UKBA official raised other concerns with the information provided. We argued that the verification report was insufficient evidence that the documents were not genuine and further provided additional evidence from the bank to support the appeal.

The Judge accepted that the bank documents were genuine and allowed the appeal.

May 2009


Tier 1 (post-study worker) - Appeal allowed

Second appeal allowed on the basis of the argument that individuals applying to switch from the IGS to the PSW do not need to meet ANY of the points requirements under the transitional provisions.

The main difference between this case and the case below was that this client did not receive emails directly from the Home Office but was still found to be entitled to rely on the policy.

April 2009


Tier 1 (general) - Appeal allowed - further evidence of funds from client's home country provided at the appeal in order to satisfy the maintenance requirements

Our client was refused under the maintenance provisions due to the fact that her UK bank accounts dipped below £800 for less than 1 week during the relevant 3-month period prior to the application.

We provided new evidence of her bank account in China at the appeal stage in the form of bank statements and a bank letter. There was no objection from the Home Office and the Immigration Judge was satisfied that the new statements were sufficient to show that our client met the maintenance requirements.

April 2009

Tier 1 (post-study worker) - Appeal allowed - Judge accepted that transitional arrangements may mean that applicants from the IGS do not need to satisfy the maintenance requirements

Our client had been granted 1 year on the IGS and applied to switch into the Tier 1 (post study worker) category. He was confused about the transitional provisions applying to IGS applicants and so contacted the Home Office. He received emails from the Home Office informing him that individuals on the IGS would automatically be granted points in all categories including maintenance. He did not have £800 for 3 months prior to making his application and the Home Office then refused his application.

Despite some parts of the Tier 1 (psw) guidance making it clear that all applicants must meet the mainteance requirements, some parts are also ambiguous. The Immigration Judge accepted that our client had a legitimate expectation that he would be granted points for maintenance particularly due to having received emails from the Home Office informing him of this. His appeal was allowed.

We are unsure as to how far these arguments can be extended but hope to establish a precedent that can be used by all IGS individuals who are refused on maintenance grounds.

March 2009


Tier 1 - insufficient evidence of maintenance - Appeal allowed

We have recently won 3 different appeals for clients who were refused for failing to meet the provisions of the maintenance requirements of the Tier 1 rules.

In two cases our clients failed to submit 3-months of bank statements. In the other case, our client's bank statements were more than 1 month prior to the date of her application.

In each of these cases we submitted further bank statements to the Immigration Judge and these were accepted as sufficient for the appeal to be successful. Immigration Judges continue to accept that further evidence is currently admissible in Tier 1 appeals.

A number of Judges have also commented that they consider the maintenance requirements to be overly strict and unfair. We believe that there is considerable room to successfully challenge the rules even in cases where applicants do not have the required funds for the 3-month period. We have a number of these appeals pending and hope to bring news of a successful outcome shortly.

Feb - March 2009

Post-Study Application - BVC not a "relevant academic qualification"

A budding Barrister whose Post-Study Worker application was turned down by the home office as they did not consider his Bar Vocational Course to be a “relevant academic qualification” has just won his appeal. We submitted detailed evidence to prove that the BVC is a Postgraduate Diploma and is clearly an acceptable qualification under the Immigration Rules. The Judge agreed that it made no sense whatsoever to exclude this qualification and others like it such as the ACCA. Here is yet another example of strict and unreasonable decision-making on the part of the home office which was fortunately overturned through good appeal preparation, innovative legal arguments and a sensible Judge.

Jan 2009

Tier 1 - Tax document not accepted - Appeal allowed

Our client had submitted payslips and a tax document to prove her earnings for a period prior to some years of full-time study. The Home Office had refused her application on the grounds that the tax document she had provided had been stamped by her employer and was therefore not a different source of earnings to her payslips.

We made legal submissions to the Immigration Judge and argued that although the tax document was stamped by the applicant's employer, it had still gone through the official tax authority and that if its authenticity was challenged the Home Office should have made attempts to verify this. We also submitted evidence to prove the authenticity of the document.

The Judge accepted the arguments and the authenticity of the tax documents and was satisfied that our client met the requirements of the Immigration Rules. The Judge allowed the appeal on the spot.

November 2008


Tier 1 - Post-Study Worker - Appeal allowed

Our client's post-study worker application was refused as the letter he provided from his University did not state the date of award of his degree or the date on which his course ended.

We made submissions before the Immigration Judge and argued that the document submitted was sufficient. We claimed that the requirements of the Home Office Policy guidelines were not strictly law and so should not be construed in a manner more restrictive than the Immigration Rules themselves. In the alternative we submitted a new letter from the University clearly stating the date of award and argued the admissibility of this evidence.

The Immigration Judge accepted the new evidence and allowed the appeal on the day.

November 08


Tier 1 - whether previous earnings earned in breach of work permit restrictions - Appeal allowed

Our client's application was refused as it was alleged that his previous earnings had been made in breach of his work permit conditions as he had been acting in a self-employed capacity.

We argued that our client's contract of employment and his conditions of work showed that he was truly an employee. We adduced substantial evidence of his working arrangements, the legal distinctions between employee / contractor and a report from an employment barrister who had agreed that our client was an employee.

The Immigration Judge accepted our arguments and was impressed with the report from the employment barrister. Our client's appeal was allowed.

August 08



Tier 1 - self-employed applicant - insufficient evidence of earnings - Appeal allowed

Our client was self-employed and provided evidence of substantial earnings over the previous year by providing invoices and his audited accounts.

The Home Office had refused his application as the income from the invoices did not exactly match the profits shown in the accounts.

We argued before the Immigration Judge that he had provided two sources of the evidences as required by the Tier 1 guidance and that to require more evidence was unreasonable. We also argued that the dictionary definition of the word "corroborate" does not mean that two things must match each other exactly but that they should merely support each other. Invoices of a business would never be the exact profit figure as expenses had to be taken into account.

We were also able to adduce new evidence in the form of business bank statements.

The immigration Judge agreed with our arguments and allowed our clients appeal.

July 08

If you would like us to help you with a Tier 1 application or to challenge a refusal, email us at enquiries@advisasolicitors.co.uk

success stories

Tier 1 and Tier 2 Appeal and Judial Review Victories
The Home Office have been interpreting the Tier 1 and Tier 2 requirements very strictly.

We have had great success in winning many appeals and Judicial Reviews against Tier 1 and Tier 2 refusals.
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Entry Clearance Appeals
Decisions of Embassies and BHCs overseas sometimes fail to fairly consider an individuals case. Refusals over the last few months have often been on maintenance grounds on the basis of minor issues with documents.

We have an excellent record of overturning unfair decisions made by Entry Clearance Posts.

See more details of our recent successes.
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