As a direct access immigration barrister practising from Imperium Chambers there have been a lot of paragraph 322 5 cases come up recently. However, I was recently presented with a case of an entirely different nature.
This was a substantive judicial review hearing where the Secretary of State required the main Applicant to show 5 months savings yet his dependants 9 months. Permission was granted not surprisingly given the apparent inconsistency.
The Applicant had previously been granted leave to remain as a Tier 4 Migrant for some 3 years to complete a PhD. At the end of the three year period he was required to make some amendments to his work.
The Applicant decided to apply for five months leave to remain. He had funds for himself and his dependants for more than 5 months.
The Secretary of State refused the application on the basis that he needed to show 5 months for himself and 9 for his dependants.
The matter came before Mr Justice Lewis in the Upper Tribunal. The Home Office position was that the course was for over 5 months and therefore he needed to show funding for 9 months for his dependants. The Secretary of State sought to argue that the “course” included the start date and then ultimate end date which would have been some 3 and a half years.
I argued that the Court had to consider when considering maintenance that the definition of the course was defined in the Certificate of Acceptance of Studies (“CAS”) and not the academic course.
I also argued that the previous grant of leave for three years was irrelevant.
The case turned on the application of the relevant rule in respect of the length of leave to be granted.
The issue was what was the definition of course.
Academically, it was for more than 3 years – indeed those studying for a Phd can take many years to qualify and can be granted leave in line with this.
I argued that the definition of course was that to be found within the CAS. There have been numerous cases where Applicants have fallen foul of some minor infraction of the relevant rule.
The CAS was quite clear, it cited a five month course.
The relevant rules provide that for courses under six months require funding for five months as leave will only be granted for five months and an additional 7 days.
It was my position that following the relevant case law it is the Immigration Rules that defined “course” and therefore the maintenance requirement.
The Home Office countered with the position that it would be, among other factors, a breach of principle to only grant short periods of leave and that it would undermine the relevant Immigration Rule for an individual to only be granted a short period of leave. My response was that it was for the Applicant to make whatever length of application they saw fit.
The Judge allowed the JR and quashed the refusal directing it to be remade in line with the decision, which is as close as to telling the HO to grant leave as I have seen.
The basis for the Judge’s decision was that when looking at the length of the course for the purposes of the Immigration Rules the starting point was the CAS as this defines the length of the course, as well as what it is, where it is and what qualified the Applicant to be granted the CAS amongst other factors.
The CAS was explicit. It stated that the course was for five months.
The Immigration Rules provide clearly that for courses under six months – funding needs to be shown for each month. The Immigration Rules clearly provide that the Applicants’ dependants are to be granted leave to remain for the same period.
The Judge found that notwithstanding that the academic course ran for more than 3 years and 5 months for the purposes of the Immigration Rules the “course” ran for 5 months and that was all they had to demonstrate, which they more than did.
The Judge quashed the decision. I would expect and hope that upon reading the HO grant the client the leave he so deserves.
If you or a family member have an immigration problem or just want to know where you stand and what you can do please get in touch with me or my highly skilled and successful barristers, including Jay Gajjar and Kareesha Turner. All of us are highly proficient and all told boast over 50 years immigration experience. We are the specialists.
Paul Turner is a highly regarded direct access barrister who is licensed by the Bar Council to provide legal services directly to the public. He is head of Imperium Chambers, 2 Selkirk Road London, SW17 0ES