UK: Points Based System - Avoiding Refusals, Appeals And Challenges

Last Updated: 16 June 2009
Article by Nichola Carter

The UK Border Agency (UKBA) is refusing increasing numbers of applications under the points based system (PBS).

UKBA is due to release statistics relating to approved and refused applications in August and it is widely expected that this will show refusal rates at their highest since PBS was introduced. The main areas which appear to be causing difficulties to individual applicants and employers dealing with the new system are:

  • evidence of maintenance funds which does not meet the specific requirements
  • failure to submit required evidence relating to salary
  • inconsistencies with information already held by UKBA
  • contradictory or wrong information on Certificates of Sponsorship and entry clearance/leave to remain applications.

Maintenance funds

Where the applicant is required to meet the maintenance requirement themselves, rather than through the sponsor, it is essential that they demonstrate that they have the required amount (£2,800 plus £1,600 for each dependant if applying under tier 1 (general) from abroad and £800 plus £533 for each dependant if applying from inside the UK).

The evidence to be submitted must demonstrate that the cash funds have been held by the applicant (in their own or a joint account(s)) continuously over a three month period. The continuous element is causing the main difficulties because if the balance has dropped below the amount for even one day during the three month period, the application will be refused.

Salary

For applicants under tier 1 (general) the applicant must demonstrate their earnings over a continuous period of 12 months out of the previous 15 months. The evidence must come from at least two different sources so wage slips and a letter from an employer, for instance, will not be sufficient as it is from the same source. The earnings for which points are claimed must also relate to legal employment. If an applicant was working unlawfully, for instance because they did not have permission to work or they did not declare tax on earnings, then the application will be rejected.

Inconsistent information

When an application is filed under PBS, UKBA will review its own records. If there are inconsistencies, for instance their records show that the individual was authorised to work in a different role, or earning a different salary, then they are likely to reject the application and this can lead to them curtailing the leave of the individual and making a compliance visit to the employer.

Certificates of Sponsorship and leave applications

UKBA checks information submitted in entry clearance and leave to remain applications to ensure consistency with information contained on Certificates of Sponsorship. It is essential that the information on the Certificate of Sponsorship is accurate, so for instance, if an incorrect salary figure has been inputted by mistake, a fresh Certificate of Sponsorship should be issued. If a certificate containing incorrect information is knowingly used in an application for entry clearance or leave to remain, then the offence of making or causing to be made to an immigration officer a false return, statement or representation (section 26(1)(c) Immigration Act 1971) will have been committed and this can have serious consequences for both the individual and the sponsor.

Appeals - tier 1 (general)

Penningtons' immigration team has conducted a number of successful appeals on behalf of employers and individuals relating to PBS applications including tier 1 (general) and tier 1 (post study work) where either the applicant did not include required evidence (most typically relating to maintenance or salary) or the information supplied is inconsistent with UKBA records. Such appeals break down into three groups:

  • where the applicant met the requirements at the time they submitted the application but failed to submit correct evidence.

    Our experience to date is that appeals to the Immigration Appeals Tribunal (AIT) against such refusals are always successful and usually a positive result can be achieved within 4-6 weeks of the date of the refusal.
  • where the applicant did not meet the requirements at the time they submitted the application but did meet them at the time the application was considered and refused.

    Our experience to date is that these appeals can be won providing they are supported by strong submissions.
  • where the applicant did not meet the requirements at the time they submitted the application, nor at the time the application was considered and refused, but they do meet them as at the date the appeal is heard.

    We have had an indication from an immigration judge who considered and allowed an appeal of the type detailed in the second point that they may be willing to allow such appeals, but again, they would have to be supported by strong submissions and the risk of refusal is greater.

Curtailing leave

An appeal in the circumstances outlined above can only be instigated by the applicant if, at the time of the decision on their application, their leave had expired or UKBA curtailed their leave at the same time as refusing the application.

If leave has not been curtailed, the individual will have to file a fresh application with the correct documents and pay a fresh fee.

Out of time applications

There is no requirement under PBS for an in-country applicant to have leave to remain at the time an application is filed but they must have had leave (ie a person who entered the UK illegally will not be approved unless there are wholly exceptional circumstances). We are aware of cases where applications under PBS have been approved up to six months after the applicant's leave expired, providing the application did not breach any conditions of their leave, for instance they did not work during that time.

Conditions of leave and redundancy

The conditions of an applicant's leave are outlined on the endorsement of entry clearance/leave to remain. Typically a condition of leave is that the applicant must not have recourse to public funds. Other conditions may be a requirement to report to the police, or a requirement that any work undertaken by the application 'must be authorised'. This means that in order for the applicant to work lawfully, UKBA must have authorised the work, so for instance work by a student is deemed to be authorised for up to 20 hours a week during term-time and full time during vacation. For a work permit holder or tier 2 migrant, work must be specifically authorised via a work permit and leave approval by UKBA, or a certificate issued by a sponsor combined with UKBA approval of leave.

Providing an applicant is not breaching a condition of leave, they may remain in the UK lawfully. For instance, an applicant who was employed under a work permit and who has been made redundant may remain in the UK lawfully up to the time their leave expires or UKBA curtails it. They must not undertake other work because a condition of their leave is that any work they undertake must be authorised. Equally they must not claim public funds, again because a condition of their leave prohibits this. If they leave the UK then this will automatically terminate their lawful leave because any attempt by the individual to re-enter the UK using leave connected with a job in which they are no longer employed will be an attempt to make an unlawful entry.

Mandatory bans

An attempt to make an unlawful entry to the UK (for instance pretending you are still employed under the terms of a work permit when you are not, attempting to enter as a business visitor when you in fact intend to work and so on) now attracts a mandatory ban of up to 10 years.

UKBA has increased its activity in enforcing such bans so it is more crucial than ever that migrants take advice to ensure that they comply with UK immigration rules and the conditions of their leave.

Leave has expired - when should the applicant depart from the UK?

As referred to above, providing a migrant does not breach the conditions of leave, they may remain in the UK up to the point that leave expires or up to the time UKBA curtails the leave (for instance their employer may have informed UKBA of the end of work permit or tier 2 employment which will eventually (subject to manpower at UKBA) lead to them curtailing the leave of the individual.

A migrant may remain in the UK for up to 28 days after their leave has expired or been curtailed without this triggering a mandatory ban. If they remain for longer than that, then this alone can lead to them being banned from the UK for 12 months.

What immigration advice and/or services can employers and HR personnel provide?

There are strict rules relating to the immigration advice and/or services which employers may provide to their employees and potential employees.

For instance, it is presently a criminal offence for employers to provide advice and/or services relating to all types of tier 1 applications. Employers may provide advice and/or services relating to tier 2 applications providing there is no charge to the applicant for such advice.

For futher information, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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