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Article 8 _  Recent Decisions

Section 55- Best interests of the child

Tinizaray, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin) (25 October 2011)

This case was heard at the Administrative Court on 25th October 2011.

Facts

The claimant Ms Zaira Tinizaray sought judicial review of the defendant’s decisions to refuse her and her family (consisting of mother and daughter) indefinite leave to remain. The claimant’s daughter Angeles is 9 years old and one of the grounds for judicial review was based on the fact that the defendant did not properly consider Angeles’s welfare and the article 8 ECHR of the family members. The case concerned the application of Section 55 of the Borders, Citizenship and Immigration Act 2009 (herein after referred to as the BCIA) and the decision in the Supreme Court case of ZH (Tanzania) [2011] UKSC 4. 

The claimants are Ecuadorian nationals and arrived in the UK illegally in 2001 as economic migrants. The main claimant Zaira, gave birth to Angeles in the UK on 1st May 2002. The father is believed to have remained in Ecuador.

The claimant made an application for indefinite leave to remain on a SET (O) application form (version 11/2008) with her mother and daughter as dependants. Representations were made on the basis of the seven year child concession (DP5/96). This policy stipulated that deportation would not normally be appropriate in cases where the child or children of the applicants had resided for 7 years or more in the UK. The policy was withdrawn as of 9th December 2008. However, the UK Border Agency will continue to consider whether the child has spent a significant period of their life in the UK.

The claimant’s application was refused by the defendants on 3rd September 2009 stating that the application could not be considered in accordance with the policy which has been refused. The decision also held that the family’s ties to the UK were not strong enough to engage article 8 of the European Convention on Human Rights. The defendants also considered paragraph 395C of the Immigration Rules concluding that they did not assist in demonstrating any compelling or compassionate circumstances to allow the family to remain in the UK.

Legal Framework and case law

Reference was made to Section 55 of the BCIA which considers the child’s best interests and the duty of the Secretary of State to have regard to the welfare of the child. Reference was further made to the case of ZH (Tanzania) in which the court identified the way in which this duty should be exercised. In that case, the Tanzanian national had an ‘appalling’ immigration history however; she had children from a relationship with a British National which had to be taken into consideration. The appellant in that case had been allowed to stay in the UK on the basis of her family life and in order to safeguard and promote the best interests of her children.

Conclusion

The Court held that more information would be required for the defendants to make a decision such as further school reports and any information about any changes in circumstances. Taking into account the decision in the case of ZH (Tanzania) and the Statutory Guidance, the Court concluded that the defendant’s decision was ‘inadequate’. They could not form a balanced view as to Angeles’s best interests as a lot of information, which could have reasonably been requested, were missing. The Court observed that ‘no weight appears to have been placed on the fact that Angeles was as close as it is possible to be to being a British citizen without having acquired citizenship’.

 Angeles was born and raised in the UK and had no contact to either her father or Ecuador. The defendants had concluded that Zaira and Angeles could re adapt to living in Ecuador without providing any basis for their conclusions. It was assumed that Angeles, who is aged 9, could slot into the Ecuadorian school system despite not being able to read or write in Spanish.

As such, the Court concluded that the decisions of the defendant were flawed. No appropriate consideration had been given to Angeles’s best interests which should have been a primary consideration. Each of the decisions made by the defendants was set aside.

31st October 2011

Considering the meaning of limited leave

Kishver (Limited leave: meaning) Pakistan [2011] UKUT 410 (IAC) (05 October 2011)

This Upper Tribunal case was heard on 29th July 2011 at Field House. The case concerned the meaning of ‘limited leave’ under section 10(1)(a) of the Immigration and Asylum Act 1999.

The facts of the case are as follows

The appellant is a Pakistani national. She arrived in the UK with her husband on 12th September 2004 with leave to enter as visitors valid until March 2005. The appellant claims to have submitted applications for leave to remain in January 2005. The appellant’s husband’s application was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). The appellant submitted a further application in March 2005 (after here leave had expired) as she had not received a response to her application. The appellant’s application was refused. The refusal was later withdrawn and a substantive refusal was issued dated 19th March 2009. The refusal denied a right of appeal against the decision.

Despite this, the appellant pursued an appeal which was dismissed in a determination sent in June 2009. The appellant lodged an application for reconsideration and this was granted. At a second substantive hearing the issue was whether the appellant ever had a right of appeal against the decision. The Tribunal also considered the SSHD’s treatment of the appellant’s application.

The SSHD’s argument was based on the fact that the appellant’s application submitted in January 2005, before the expiry of her leave, was made using a wrong form. This was accepted by the appellant’s representatives. Reference was made to the Prescribed Procedures and the regulations contained therein. Reference was made to Regulation 12 which stipulates that

“12 (1) A failure to comply with any of the requirements of Regulation 11(a) or (b) above to any extent will only invalidate an application if:

(a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,

(b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of state to represent the applicant, of the failure within 21 days of the date on which the application is made, and

(c)the applicant does not comply with the requirements within a reasonable time and in any event within 21 days of being notified by the Secretary of State of the failure”

According to these regulations, the SSHD could treat an invalid application as valid unless the SSHD notified the applicant of that it was not valid. The SSHD representative argued that this only applied where the prescribed form had been used. The Tribunal did not accept this submission. The Tribunal stated that the regulations applied to those who failed to use the correct form and that the SSHD could accept an application which was invalid where appropriate. The Tribunal stated that although the SSHD communicated its decision in 2009 against the application made in 2005, the SSHD’s position had been that there was a valid appeal. That could only be the case if the application which was submitted in January 2005 was a valid application as otherwise, the appellants leave would have expired by the time she made a valid application against which she would not have a right of appeal.

The SSHD representative sought to withdraw a concession to the effect that there was a right of appeal however the Tribunal did not allow this and observed that the SSHD could have withdrawn their decision a long time ago.

Conclusion & Section 3c leave under the Immigration Act 1971

The Tribunal concluded that “Limited leave” under s. 10(i)(a) of the Immigration and Asylum Act 1999 includes leave under s. 3C of the Immigration Act 1971”

The Tribunal concluded that there was a valid appeal against the SSHD decision of March 2009. Secondly, the Tribunal considered the appellant’s application for further leave to remain. With reference to case law, the Tribunal considered the operation of s. 3C and s.10 of the Immigration and Asylum Act 1999 (which deals with persons who are subject to removal having overstayed their leave). S. 3C provides that a person is not a person remaining in the UK beyond their leave when they have made an application in time and this extends to the currency of any appeal.

The Tribunal concluded that the SSHD decision of March 2009 was not in accordance with the law for failure to consider the question of removal. The appellant’s article 8 ECHR rights were also considered. Bearing in mind that no removal decision had been raised by the SSHD, this argument could not succeed. No lawful decision had been made and therefore, the SSHD would have to remake all the decisions in this case. The appeal was allowed.

8th October 2011

Consideration of Article 8 when dealing with deportation

A.A. v. the United Kingdom (no. 8000/08)

This case was heard at the European Court of Human Rights (Fourth Section) in Strasbourg.

The case originated in an application lodged against the UK and Northern Ireland under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The application was lodged on 15th February 2008 by the applicant known as A.A. The applicant was represented by the Aire centre, a non-governmental organisation based in London.  The applicant, a Nigerian national, argued that his deportation to Nigeria would breach his right to respect for his family and private life under article 8 as well as deprive him of the right to education by preventing him from continuing with his University education in the UK.

Facts of the case

The applicant, A.A was born in 1986 and lives in London. He arrived in the United Kingdom with entry clearance with his two sisters in 2000 to join his mother who had been residing here and working as a nurse.  He was aged 13 at the time of entry.  When he was 15 years old, he was convicted of rape (in 2002) of a 13 year old girl. The sentencing judge imposed a sentence of detention of four years at a Young Offenders’ Institution, together with registration on the sex offenders’ register under the Sex Offenders Act 1997. The applicant served almost half of his four-year sentence before he was released in 2004. He subsequently completed his studies and began employment. The Home Office on 8th September 2003 served the applicant with a notice of liability to a deportation order on account of his conviction. He was served with a deportation order whilst still in detention on 27th July 2004. The applicant argued that his article 8 rights would be violated if returned to Nigeria however; the Home Office considered that removal would be proportionate in light of public interest. The applicant appealed against the order. He was released from prison on good behaviour and began attending College studying towards A-Levels. The applicant’s probation officer confirmed that the risk of re-offending was low. The immigration judge of the Asylum and Immigration Tribunal allowed the applicant’s appeal against the deportation order on the basis that the discretion to make the deportation order had not been exercised fairly and proportionately.

The Home Office applied for reconsideration which was duly granted on 25th August 2005. The applicant commenced his undergraduate degree at University thereafter in September 2005. He lodged with friends but continued to regard his mother’s home as his permanent place of residence.

In January 2007, the AIT concluded there had been an error of law and the initial decision of the Tribunal was quashed. A new hearing took place in April 2007. The immigration judge took into account the applicant’s family background and history and ties to the UK. He also considered the public interest and concluded that the offence was particularly serious and the circumstances of the case were not exceptional enough to outweigh the presumption in favour of deportation. The applicant’s appeal was dismissed.  The Judge was not persuaded that the applicant had a family life in the UK given his age and the fact that he was not dependant on his mother or family members in the UK beyond normal emotional ties.  The judge did accept that the applicant had an established private life in the UK however; the interference was lawful in the pursuit of immigration control and in accordance with law.

 

The Court’s assessment

The Court considered the following factors:

-          Whether there was an interference with the applicant’s right to respect for his private and family life

-          In accordance with the law

-          Legitimate aim

-          Necessary in a democratic society

The court confirmed that

“Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Thus, regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant constitutes an interference with his right to respect for private life. While the Court has previously referred to the need to decide in the circumstances of the particular case before it whether it is appropriate to focus on “family life” rather than “private life”, it observes that in practice the factors to be examined in order to assess the proportionality of the deportation measure are the same regardless of whether family or private life is engaged”.

The parties did not dispute that the deportation order was in accordance with the law as it was made pursuant to section 3(5)(a) of the Immigration Act 1971.

The court considered that the applicant had committed a single offence and evidence in the form of reports indicated that the risk of reoffending was low. Furthermore, the deportation order which was served on the applicant did not refer to public safety or the protection of the rights of others.

The case of Üner v. the Netherlands [GC], no. 46410/99, §§ 54-58, ECHR 2006-XII, discussed the factors that needed to be assessed to determine whether the measures taken are necessary in a democratic society namely;

 

·       The nature and seriousness of the offence committed by the applicant;

·       the length of the applicant’s stay in the country from which he or she is to be expelled;

·       the time which has elapsed since the offence was committed and the applicant’s conduct during that period;

·       the nationalities of the various persons concerned;

·       the applicant’s family situation, such as the length of any marriage and other factors expressing the effectiveness of a couple’s family life;

·       whether the spouse knew about the offence at the time when he or she entered into a family relationship;

·       whether there are children of the marriage, and if so, their age;

·       the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled;

·       the best interests and well-being of any children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

·       the solidity of social, cultural and family ties with the host country and with the country of destination.

 

The court considered the total length of time the applicant spent in the UK since the age of 13. He has spent half his life in the UK and he had committed the offence two years after his arrival in the UK. He has committed no further offences since and has obtained a number of qualifications since his release. His conduct whilst at liberty appeared to be ‘exemplary’. He also commenced stable employment. The UK Government had not properly considered the applicant’s conduct in the seven years since his release from prison and they relied solely on his conviction. The court considered whether the seriousness of the offence in itself was sufficient to justify his removal from the UK in order for the prevention of disorder or crime.

 

The court concluded that the applicant’s deportation from the UK would be disproportionate to the legitimate aim of the prevention of disorder and crime and would not therefore, be necessary in a democratic society. The applicant’s article 8 rights would be violated.

 

The applicant was to be awarded 4,000 Euros in costs and expenses.

 

September 2011

Article 8 and the Best Interests of the Child

E-A (Article 8 - best interests of child) Nigeria [2011] UKUT 315 (IAC) (22 July 2011):  A Nigerian couple and their two children appealed against a decision by the Secretary of State for the Home Department (SSHD) to refuse to extend their leave to remain in the UK, relying in particular on the recent Supreme Court judgement of ZH (Tanzania) [2011] UKSC 4 to argue that the best interests of the children had not been taken into account. 

Although the appellants were first given leave to remain in the UK (because the father was studying; his wife and first child were granted leave to remain as family; and the second child likewise on her birth, the appellants no longer had a claim to remain in the UK under the Immigration Rules.  As such their claim relied on Article 8 of the European Convention on Human Rights (ECHR) (Right to family life).

The appellants no longer had a claim under the Immigration Rules because the father had run out of study leave (having previously been granted leave to remain as a student, and then on a post-study work visa under the Points Based System (PBS)).  The mother had been unable to secure sponsorship for a Tier 2 application under the PBS. 

Although the refusal to extend the parents leave to remain in the UK under the PBS did not mean the family would be separated, as the family could go together to Nigeria, the children had lived in the UK for five years (the youngest child, all her life).  As such it was necessary to carry out an assessment of the children’s right to private life (Article 8(2) ECHR) in the UK, and what the impact would be if they left the UK in this context.  Following ZH (Tanzania), it is clear that the primary consideration in making this assessment is the best interests of the child, and that no other factor should be given more weight (Lady Hale).  This means, broadly, asking whether it is reasonable to expect the child to live in another country (EB (Kosovo) v SSHD [2008] UKHL 41 (2008), per Lord Bingham).  

Although it is not enough on its own to say a child will readily adapt to life in a country which it has never known (ZH (Tanzania), in this case the children had begun to socialise with the community beyond their family only ‘tentatively’ because of their young age.  They had family in Nigeria; it was clear their parents could continue to provide a high quality of life and education for them in Nigeria; English is a language spoken in Nigeria; and both sets of grandparents were in Nigeria.  The purpose for which the parents came to the UK was always a temporary one (to study) and there could have been no expectation of a longer leave to remain.

The Tribunal found that the original decision by an Immigration Judge, finding that the decision to refuse leave to remain had a legitimate aim and was reasonable and proportionate in the circumstances, was right.  The appeals were dismissed.   

Supreme Court landmark case of ZH (Tanzania) V SSHD [2011] UKSC 4

In the case of ZH (Tanzania) the Supreme Court made a landmark ruling putting the best interests of children first.  The case involved the deportation or removal of a Tanzanian female who had made three unsuccessful applications for asylum. She formed a relationship with a British male and they had two children from their relationship. They later separated however, the father continued to see his children. The children aged 9 and 12, resided in the UK all their lives.

Lady Hale provided the leading judgment stating that the ‘primary consideration’ had to be the best interests of the British-born children. The children were British through their British father. Lady Hale provided that “As citizens, these children have rights which they will not be able to exercise if they move to another Country”. Lady hale stated that “the intrinsic importance of citizenship cannot be played down” supporting the notion that British Citizens cannot be removed from the UK.

Children’s rights organisations welcomed the decision safeguarding the rights of children in the immigration system. 

It should be noted that, the case was assessed in accordance with article 8 of the European Convention on Human Rights and that cases must be assessed on their own merits. Other factors can outweigh the interests of the child however; decision makers must ensure that they give proper consideration to the needs of children. In particular, children should not be held responsible for the actions of their parents.

The case has significant implications in practice as it reinforces the rights of children and the advantages of British citizenship. Decision makers must  make a proper proportionality assessment under article 8 of the ECHR.

February 2011

MH (pending family proceedings- discretionary leave) Morocco [2010] UKUT 439 (IAC) (28 September 2010)

This was an Upper Tribunal case concerning a Moroccan national who was in the UK on a spousal visa under paragraph 281 of the Immigration Rules. His leave was curtailed by the home office on the basis that they were no longer satisfied that his marriage was subsisting, the marriage having broken down. The appellant appealed against the decision. Although he accepted that his marriage had broken down, the appellant sought to remain in the UK on the basis of article 8 and in order to pursue family proceedings for a contact order for the couple’s daughter.

The appellant had applied for an adjournment to wait for the outcome of the family proceedings which was refused and his appeal was subsequently dismissed by the Immigration Judge presiding over the case. The Judge held that the appellant had no contact with his child and that he did not enjoy a family life in the UK. The Judge held he could continue his correspondence from Morocco by way of telephone.  The appellant sought permission to appeal which was granted.

The Upper Tribunal held as follows

·       Consideration was to be given to the decision in the case of MS (Ivory Coast) v SSHD [2007] EWCA Civ 133 where it was held that a decision to remove an applicant in the process of seeking a contact order may be in breach of article 8 especially where removal would prejudice the outcome of the proceedings which may also breach article 6 ECHR

·       The Tribunal’s decision to refuse an adjournment pending the outcome of the contact order may have a similar effect

·       The UK Border Agency should grant an extension of leave on a discretionary basis where court proceedings are in place in line with their own practice and in accordance with the Human Rights Act 1998. The use of curtailment should be discretionary and reference was made to Home Office guidance issued in October 2010

·       Such cases that appear before Tribunals should be allowed on an article 8 basis and the respondent should grant a discretionary extension of leave to remain bearing in mind the Immigration Judge’s observations. It is up to the respondent to decide how long leave should be granted for

·       Where the contact order (or other relief) is successful, then the applicant may make an application for further leave to remain in the UK. If the outcome is unsuccessful, then it is up to the respondent to take the necessary steps.

In this case, the appellant had made attempts to establish contact with the child and no reference to this was made by the Immigration Judge in his determination. It was held that this was fundamental to the consideration of whether or not a private or family life existed and therefore, the Upper Tribunal found that there was a material error of law in the first decision. The appeal was dismissed under the Immigration Rules but allowed under article 8 ECHR. The respondents stated that the appellant would be granted an extension of leave to remain for 9 months in order to fully participate in the family proceedings. If the appellant was successful, he could make an application for further leave to remain under paragraph 248A of HC 395.

13th January 2011.
The Secretary of State for the Home Department v Respondent [2010] UKUT B1 (10 December 2010)
The Iraqi respondent (R’s) right to family life precluded his removal from the UK, even in the face of his criminal convictions. 

 

The Immigration Judge (IJ) had been entitled to find that the respondent had established a family life.  Appropriate weight had been given to R’s criminal convictions.  However, the IJ should have addressed the submission that R should be returned to Iraq in order to make an entry clearance application, to regularise his immigration position in the UK.  Given that a refusal of entry clearance would breach R’s right to family life (Article 8 of the European Convention of Human Rights), there was nothing to be achieved by removing him from the UK.

 

The facts were that R, driving whilst disqualified, had failed to report an accident in which a child was trapped under his car and died.  There was no criminal responsibility (no dangerous or careless driving), but R should not have been driving in the first place.  In this case, which naturally aroused strong emotions, the father of the child who had died asked that his human right not to be separated from his child be balanced against that of the respondent’s.  However, the interests to be balanced were not those of the child’s father and R.  This was an assessment of the public interest arguments justifying removal, balanced against the consequences of removal for R, his partner and their children.

 

The respondent had begun a relationship with a British national in 2003.  They lived together and had two children, and the respondent acted as father figure to his partner’s two children from a previous marriage.   It was found the respondent had established a family life in the UK.  Because of the delay in dealing with the respondent’s immigration matters, he had had time to develop familial ties in the UK (EB (Kosovo) [2008] UKHL 41) .  The interests of the four children involved were of particular significance.  The IJ had therefore allowed the appeal.

 

The SSHO appealed the decision.  However, there had been no misdirection in law in balancing the evidence of criminality and family life, especially in light of LD (Zimbabwe) [2010] UKUT 278 , which made clear that the interests of the child would always be a relevant consideration in an Article 8 case.

 
It might be noted that on the approach of MA (Nigeria) v SSHD [2009] EWCA, in assessing whether removal of an illegal immigrant would breach his rights to family life, regard would be had to the length of time required to elapse by paragraph 320 (7B) of the Immigration Rules before R would be allowed to return.  (Paragraph 320 (7B) was a mandatory refusal.)  Because of the respondent’s right to family life, however, regardless of the Immigration Rules, refusing him entry clearance would be unlawful.
   
There was thus no useful purpose to be served in requiring R to return to Iraq in order to apply for an entry clearance to which he has become entitled under Article 8. 
 

 

FA v Secretary of State for the Home Department [2010] ScotCS CSOH_159 (30 November 2010)

 

A citizen of Afghanistan has been successful in having a decision of the Secretary of State for the Home Department reduced. The Home Department had certified that the petitioner’s claim that removal from the UK would constitute a breach of his Article 8 rights was clearly unfounded.

 

The petitioner had arrived in the UK in 2001 aged 13 and was granted leave to remain for four years. He lived with a cousin in Scotland and studied at a college there. In 2005 he applied for indefinite leave to remain but claims he received no decision on this application. During this time his sister, who has two children, came to live lawfully in the UK as a spouse.

 

In 2008 the petitioner returned to Afghanistan by lorry. He stayed for around 10 months and was then discovered attempting to return to the UK in 2009. He had already been stopped by police in the Netherlands and had claimed asylum there. On arrival in the UK he was issued with illegal entry papers and interviewed. In his interview he lied about his identity, claimed he had never lived in the UK and that he had no family here. The falsity of these statements was discovered upon checking his fingerprints, discovering the claim for asylum in the Netherlands and his previous claim for asylum in the UK in 2001.

 

Under the “Dublin 11 Regulations” provision is made for a hierarchy of responsibility should more than one EU state have responsibility for determining an asylum application. The respondent asked the Dutch authorities to take responsibility and they agreed that they were responsible for determining this claim. Therefore, the petitioner was due to be removed to the Netherlands on May 6 2009 for his claim to be determined.

 

Solicitors for the petitioner invited the Home Department to determine his claim to stay in the UK, claiming that removal would be a breach of his Article 8 rights under the ECHR. The petitioner raised judicial review proceedings against his removal and therefore the proposed removal to the Netherlands was cancelled. On 5 May 2009 the respondent gave the decision that the petitioner’s claim was to be refused as it was regarded as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

 

The petitioner argued against the assertion that the claim was clearly unfounded. Attention was drawn to the length of time the petitioner had spent in the UK from 2001 to 2008, the close family ties he had in the UK and the fact that he returned within a year after leaving for Afghanistan in 2008. The petitioner argued that the respondent had failed to give due weight to these factors when balancing the rights of the petitioner against the rights of the State.

 

The respondent used the fact that the petitioner had returned to Afghanistan in 2008 to argue that there had been no continuity of residence. The respondent relied upon the case of  (W J) (China) v Secretary of State for the Home Department 2010 where it had been decided that all ties with the UK were ruptured when the petitioner left. It was also argued that the Article 8 claim was unfounded because of gaps in the narrative that the petitioner had failed to answer where the onus was on him to provide explanations.

 

The judge did not accept the argument by the respondent that the case should be judged from the date of the return to the UK in 2009. Instead he chose to look at the whole picture including the petitioner’s life in the UK from 2001. The judge identified the correct legal test as Z T (Kosovo) v Secretary of State for the Home Department [2009]- if there is reasonable doubt that the claim may succeed it is not clearly unfounded. The judge considered that on the facts there was reasonable doubt and therefore the decision of the Home Department that the claim was unfounded was irrational. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC)
 
The Upper Tribunal (Immigration and Asylum Chamber) have overturned the determination of the appeal judge and have allowed the appeal of a Brazilian national studying in the UK, allowing her to extend her stay.

 

The Brazilian national had been granted leave to enter the UK as a student and was financially supported by two sponsors. Upon application for an extension of stay in order to complete her studies, it was decided that she did not comply with Appendix C to the Immigration Rules, concerned with maintenance and available funds. 

 

The appellant did not have the required amount in her bank account, although her sponsors did have sufficient funds which they were willing to make available to her.

Under paragraph 117 of the UKBA Tier 4 Points Based System Policy Guidance a student could only rely on money held in a bank account in another person’s name if the account was in the name of a parent or legal guardian and there was evidence to establish both the relationship and the fact that permission to use the money was given.

 

In the first appeal, the Immigration Judge applied this guidance, determining that the sponsors did not meet this definition and therefore the appellant could not rely on the funds held in their accounts.

 

The judge also considered the argument that the appellant’s Article 8 rights were interfered with in that she could not finish the studies which she entered the UK to undertake. The judge considered that Article 8 was potentially engaged but that any interference was proportionate.

 

The Upper Tribunal overturned this decision. Following the decision in Pankina v SSHD [2010] EWCA Civ 719, it was held that Policy Guidance that had not been laid before Parliament before the inception of the Points Based System cannot be relied on by the Respondent as a source of additional mandatory requirements. Therefore, in applying the guidance, the appeal judge had erred in law. It was held that funds are “available” to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated.

 

The Upper Tribunal also considered the Article 8 argument and held that the application of the policy guidance was a disproportionate interference to the appellant’s private life. A person who is admitted to the UK to follow a course of study that has not yet ended may build up a private life to be respected, and the public interest in removing the person is reduced where there are sufficient funds available to them.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
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