Variations to Student Visa Applications

A recent decision by the Upper Tribunal has resulted in clarification about the validity of variations made to Tier 4 (General) student visa applications whilst they are still pending before the relevant authority. There has been no previous case on this point.

In the case of Qureshi (Tier 4 – effect of variation – App C) Pakistan [2011] UKUT 412 (IAC) (21 November 2011), the Upper Tier Tribunal has held that variations to applications made under Tier 4 are valid, providing:

• Your application is still pending before the UK Border Agency, and its outcome has not been determined;
• The variation does not affect the purpose of the application.

It is open to the applicant to vary their application on numerous occasions provided the two conditions listed above are met. Of course, these variations must be material to the application. A change of college and submission of a new Confirmation of Acceptance for Studies (CAS) will be deemed material. However, a change in the applicant’s address will not be deemed material.

The last date of variation will be taken to be the effective date of application for the purposes of meeting the maintenance requirement under Tier 4, i.e. demonstrating that you have sufficient funds for your course fees and living costs for the 28 day period prior to your application date.

The case concerned a variation to an application to extend a Tier 4 (General) student visa. The variation was a change in the course of study and a change in the education provider.

The applicant was present in the UK as a student and applied for further leave to remain on 12th August 2010.

The course she was studying was with Empire College London and began in February 2010. With this application, she included her CAS from Empire College London, together with records of her bank account for the period from 28th June 2010 to 27th July 2010. Her application for further leave to remain was made within time.

Empire College London lost its sponsorship licence in September 2010.

On 15th December 2010, the applicant wrote to the UK Border Agency explaining that her current course was due to end on 21st January 2011, and informed them that she had been accepted on a new course to study MSc Management at Birmingham City University from January 2011. The applicant enclosed her new CAS from Birmingham City University.

On 12th January 2011, the applicant wrote again to the UK Border Agency, enclosing bank account statements to demonstrate the maintenance requirement under Tier 4.

On 20th January 2011, the UK Border Agency refused the application because the maintenance requirement had not been met, and so the 10 points required were not awarded.

The applicant appealed to the First Tier Tribunal.

Immigration Judge, J Macdonald observed that the issue was important because if the date of the application was held to be effective on 12 August 2010, the applicant would be short of funds. However if the date was held to be effective on 12 January 2011, the applicant would have sufficient funds:

It seems fair to conclude that the Home Office therefore treated the application as being dated 12th January 2011 because they based their decision on what was said in that letter – at which time the appellant was studying at Birmingham City University and not at Empire College London.

An appeal to the Upper Tier Tribunal was sought by the Secretary of State, arguing that the letter dated 12th January 2011 was not a variation of the original application made in August 2010, but rather a means for providing the UK Border Agency with updated information on the application dated 12th August 2011.

The Upper Tribunal reached judgment in favour of the applicant. She was allowed to vary her application, because a decision had not been made. The last variation was the date for calculating the funding requirements because it was the final variation. The Tribunal’s full reasoning was:

1. The Tribunal were satisfied that the applicant was seeking to vary her application for the same purpose of further leave to remain to continue studying.
2. Counsel for the applicant submitted that the letter dated 15th December 2010 was not notification of a variation, on the basis that the relevant date was when the application was varied. If the letter of 15th December was taken as the date of variation, his client would be unable to succeed. The letter dated 15th December 2010 was held to be a variation of the application.
3. The Tribunal acknowledged, however, that it was still open to the applicant to further vary her application on 12th January 2011 in order to submit the relevant documents to demonstrate that she met the funding requirements. As 12th January 2011 was the last date upon which a variation was made, it was held as the effective date of application for the purposes of calculating the funding requirement.
4. The tribunal was satisfied that it is open to an applicant to vary their Tier 4 (General) student visa application. They noted that:

there is no restriction on the number of applications for variation of the original application can be made provided notice of variation is given prior to the respondent’s decision.

This decision means that if you need to make a variation to your Tier 4 (General) student visa application, you will be able to do so provided:

1. Your application is still pending;
2. Your original application was made within time; and
3. It is being varied for the same purpose as your original application.

It is important to remember that your CAS will only be valid for 6 months once it has been assigned. This will not change. However, the effective date of application for determining if the maintenance requirement is met under Tier 4 will be the date of the latest variation.