The Upper Tribunal (Asylum & Immigration Chamber) on the 23rd July 2010 in the case of FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) passed judgment on the necessary evidence to be submitted in relation to maintenance funds by applicants under the Points Based System. In doing so the Tribunal reviewed the effect of the UKBA Guidance Policy on the Immigration Rules.
This particular case was in relation to whether the appellant a master’s student who started her course on 24 September 2007 and due to complete the course on 2 July 2010 could remain in the UK after her studies were finished.
The appellant had made her application for leave to remain as a Tier 4 (General) Student Migrant around the 8th October 2009 with the second appellant (her husband) appearing on the application as her dependent. The application was refused by the Home Office on 29 December 2009.
The refusal was based on the ground the appellant had not provided evidence of funds in order to be awarded the points under Appendix C of the Immigration Rules, which provides evidence of maintenance funds of £2,800 must be shown. However, the appellant had provided a number of bank statements in her husband’s name illustrating she had sufficient funds, and so decided to appeal against the decision.
Before the Immigration Appeal Judge ample evidence was submitted to show she had access to these funds, which included the bank statements showing payments made to her university, a statement from the husband stating she had access to the funds and a statement from the university confirming tuition fees had been paid from these accounts.
However, the Immigration Appeal Judge continued to dismiss the appeal for two reasons; firstly because the last date on the bank statement was 24 September 2009 whilst the application was made around 8 October 2009 and so the last entry did not cover the date of the application. Secondly, because the statements were in the sole name of her husband and according to the UKBA Guidance a student may in certain circumstances use their parent’s bank statements but no provision in the Guidance permitted a student to use their spouse’s bank statements to establish their case.
The Immigration Appeal judge also pointed out that the Immigration Rules and Guidance provided the funds had to be available to the appellant and since consent from her husband that the appellant could access the funds could be withdrawn at anytime did not help the appellant in her appeal, and so for these reasons the judge found the funds in her spouse’s account were in effect not available to the her.
However, permission to appeal to the Upper Tribunal was granted in light of the Court of Appeal decision in Pankina v SSHD [2010] EWCA Civ 719, which provided that policy “guidance cannot be used to supplement the requirements of the Immigration Rules by imposing an additional obligation on applicants that is not spelt out in the Rules”,
The Upper Tribunal allowed the appellants appeal for a number of reasons. One, that the Immigration Appeal Judge was mistakenly led to believe there was a gap between the last date of the bank statement and the date of the application, but in fact there was no gap.
Two, because Paragraph 11 of Appendix C only required that the appellant demonstrate she had funds available to her and sufficient documentary evidence to support this, and not as the respondent (SSHD) had contested that Policy Guidance required bank statements submitted be in the first appellant’s own name or in the name of parents who were eligible as sponsors.
The Judges at the Upper Tribunal took this position on the basis that these policies were not requirements of Appendix C or any other part of the Immigration Rules read independently of the Guidance. The Tribunal as a result found there was no reason why the appellant could not establish she had funds available to her from a bank account in her husband’s name and be granted the points available under Appendix C.
This judgement in effect confirmed there is no need for applicant’s to show they have funds in bank accounts only in their name in order to meet the requirements of Appendix C of the Rules, its sufficient that the funds are in an account held in the sole name of their spouses so long as they are able to provide evidence they have access to these funds. This case also confirmed that the immigration “Policy Guidance does not have the status of the Immigration Rules for the purpose of immigration appeals”.
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Article: Kani Areef
Date: 29/08/2010