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| Tier 4 _ Case Law |
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Judicial review of denied entry clearance for Tier 4 Student
Kobir, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2515 (Admin) (06 October 2011)
This was the judicial review of a decision of the Secretary of State for the Home Department (SSHD) to refuse the claimant leave to remain in the UK as a Tier 4 (General) Student.
The claimant had originally applied from Bangladesh for a visa to enter the UK in 2002. This was granted. On entering the UK the claimant applied for leave to remain as a student, and permission was granted. His wife joined him in the UK in 2006, and he continued to be granted leave to remain through 2007, when his son was born, and 2008 when his daughter was born. By 2009, the claimant had completed his Computer Science degree, and embarked on postgraduate study. His course was due to finish in September 2010. His latest leave to remain expired in May 2009.
Before his current leave expired, the claimant applied for further leave to remain. The Points Based System had just been brought into force. It was thus the first time the claimant had filled in the Tier 4 Student’s application form for himself, and his wife and children as dependents of a Tier 4 Student Migrant. This involved over 70 pages of policy guidance to read. The fee for the application was £357 for the claimant, and £50 for each dependent. The claimant failed to appreciate that he had to pay £50 for each of his children’s applications. The applications were returned, with a standard cover letter and a box ticked to show that the correct amount of fees had not been paid. The claimant returned the forms with the correct fees and a letter explaining his mistake. There was no indication he needed to re-submit any supporting documentation, and he did not do so.
A year passed, during which the SSHD failed to respond to the claimant. As a result his leave to remain expired, the immigration status of him and the family was uncertain, and he was no longer allowed to continue his postgraduate course. He lost the fees he had paid for his course.
Eventually the claimant received a letter from the SSHD informing him that his application had failed because he had not submitted evidence that he had sufficient funds to maintain himself, under the Points Based System rules. In fact, the claimant’s bank statement sent with the original application had shown precisely that he did have the requisite funds, but by the time the application was returned with the correct amount of fees the bank statement was out-of-date for the application.
The claimant was warned that he and his family were liable to be prosecuted if they did not leave the UK, and that they should do so as soon as possible to avoid being removed. Once the family was back in Bangladesh, it would have been possible for the claimant to apply for entry clearance to the UK, and there was nothing to suggest that application would have failed, in light of his perfect immigration record. The question had to be asked why the SSHD would require the family to spend considerable money temporarily relocating to Bangladesh in order to make an out-of-country application, especially in light of the fact that the claimant had since determined to finish his education by enrolling on a new course at a different college, and hiring solicitors to make a fresh application for leave to remain.
Given the lack of proportionality accorded to a mistake in application form fees, and the excessive delay on the part of the SSHD in dealing with the claimant’s application, the decision to deny him leave to remain was quashed and remitted to the SSHD to re-make.
Zoe Sutherland
Cancellation of entry clearance on arrival in the UK
Kose, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2594 (Admin) (17 October 2011)
This was a renewed application for the courts to review the Secretary of State for the Home Department’s (SSHD’s) decision to deny Mr Kose entry clearance to the UK. The application was denied.
Mr Kose had been granted entry clearance to the UK as a Tier 4 (General) Student. His sponsor was Edwards Language School, London. He had received a Certificate of Acceptance, or CAS, passed a skype interview, and provided a certificate to show he had the requisite level of English to follow his course. He paid the School £3,000 in fees for a six month course.
On his arrival at Manchester airport Mr Kose was stopped and questioned by immigration officials. The officials telephoned Edwards Language School, and following this conversation the academic manager of the school sent a fax to the airport stating the School was not satisfied that Mr Kose had a sufficiently high level of English to take his course. The immigration officials then cancelled Mr Kose’s entry clearance.
Mr Kose argued that this decision, and the process through which it came about, was unfair. The SSHD responded by arguing that once the school in question had withdrawn its sponsorship and CAS, leave was necessarily cancelled (under the paragraph 321A(1) of the Immigration Rules (HC 395)).
The first court to hear Mr Kose’s case established that he had not made false representations about his level of English when he applied for his course, but rather that he had been unwell on arriving in the UK, and was dealing with unfamiliar accents when he was taken for questioning by immigration officials. However, the Judge found that without a CAS, Mr Kose had no right to enter the UK as a student. This held true even if the reasons for the language school’s withdrawal of the CAS were unfair.
Immigration officials are allowed, under Schedule 2, paragraph 2A, of the Immigration Act 1971 to examine an individual who has been given leave to enter the UK, with the aim of finding out whether there has been a ‘change in the circumstances’ of his/her case, such that leave to enter the UK might be cancelled. The SSHD maintained – relying on SSHD v Bahen [2010] EWCA Civ 585 – that this power of cancellation is to ‘ensure proper immigration control’.
Mr Kose’s application was for judicial review; that is, to have a judge to examine the SSHD’s decision to revoke Mr Kose’s entry clearance in the way it was carried out, in order to establish whether there was any unfairness, irrationality or unlawful considerations in the decision-making process.
In the end, given that applications for entry clearance might be made only from outside the UK (paragraph 28 of the Immigration Rules (HC 295)), and in light of the fact that Mr Kose no longer held a CAS, it had been open to the SSHD to cancel Mr Kose’s entry clearance, despite what the court described as the ‘unfortunate experience of the claimant on arrival in the UK’.
Zoe Sutherland
Ejifugha (Tier 4 - funds - credit) Nigeria [2011] UKUT 244 (IAC) (09 May 2011):
A Nigerian couple had been refused further leave to remain in the UK. The husband was refused as a Tier 4 (General) Student Migrant under the points-based system (PBS). His wife was refused because her application depended on her husband’s, as she applied on the basis of being the spouse of a Tier 4 student. Both appeals were allowed as recent case law had made clear that a credit card limit would be sufficient to show that funds were available for an applicant’s use. Once the husband’s appeal to be granted Tier 4 status succeeded, his wife’s appeal succeeded also as a dependent application.
The husband’s application had been refused because the government argued that under the Immigration Rules a credit limit on a credit card could not satisfy the rule that applicants must have a certain amount of funds ‘available’ to them, such that they would not need to rely on public funds. Under the Immigration Rules, and in light of Pankina [2010] EWCA Civ 719, which determined that applicants must have the amount of funds specified by the government’s estimate of the amount required to be self-sufficient in a particular situation on at least one day of the 28 day period specified in the Immigration Rules, prior to the submission of an application.
The Immigration Judge who made the decision which was the subject of this appeal had said that the funds would need to be ‘held’ in the appellant’s account in order to be considered ‘available’ as per the Immigration Rules.
The Tribunal in the instant case found that there had been a material error in law in reaching such a conclusion. Whilst the Secretary of State for the Home Department submitted that funds would need to be ‘actively’ available, she had to concede that this was an unnecessary gloss on the actual words of the Immigration Rules. The court noted that there is no such requirement for funds to be ‘actively’ available. At any rate, as a point of fact, the applicant could have drawn down the credit limit on his card and placed these funds in a bank account, which would have meant he was holding the funds more ‘actively’.
The crucial point was that paragraph 245ZX of the Immigration Rules, read in conjunction with Appendix C as it applies to Tier 4 (General) Student applications says only that funds must be available to such an applicant, so that they will not need to rely on public funds. The Immigration Judge in the First Tier Tribunal had used the policy guidance for UKBA officers in order to find that a credit card limit was not enough to show an individual to have funds available to him/her.
In allowing the appeal in the instant case the Tribunal noted that Pankina has now overtaken the decision in PO (Nigeria) [2009] UKAIT 00047 which was that an overdraft facility would not count as available funds. This is especially in light of CDS (Brazil) [2010] UKUT 00305 (IAC), where a third party’s funds were found to count as available funds for a points based system student application because the third party was willing to deploy those funds to maintain the applicant.
Switching into dependant status before Statement of Changes in Immigration Rules
Singini (para 319C, switching to dependant category) Malawi (Rev 1) [2011] UKUT 248 (IAC) (25 May 2011)
This Upper Tribunal case was heard on 13th April 2011 at Field House. The facts of the case are as follows:
The appellant is a Malawian national. He applied to vary his leave to remain in the UK IN February 20110 which was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) in their decision dated April 2010. The refusal was made under paragraph 319C of the Statement of Changes in the Immigration Rules HC 395 (as amended) and on human rights, article 8 grounds. The appellant had entered the UK on 6th January 2997 as a student. He applied for further leave to remain under the points based system (PBS) and was seeking to convert his student status into that of a dependant of a person with leave to remain under PBS. The SSHD argued that, under paragraph 319C(h) of the Immigration Rules, this variation of leave was not allowed. The appellant appealed against the decision however, the First Tier Tribunal dismissed the appeal and agreed with the SSHD on the point of the conversion. They also rejected the appellants claims under article 8 ECHR.
The appellant applied for permission to appeal which was granted on the basis that there were two potential errors of law in the First Tier Tribunal’s decision. The first issue was whether the appellant could convert and the second issue related to the article 8 aspect of the claim.
Paragraph 319C of the Immigration Rules set out the requirements in order to qualify for leave to remain as the partner of a PBS migrant. Amendments were made in a Statement of Changes in Immigration Rules which were laid before Parliament on 10th February (one day after the appellant applied to vary his leave). The changes embodied in the Statement were to take effect on 3rd March 2010. However, applications made before this date which had not yet been decided, were to be considered in accordance with the rules in force on 2nd March 2010.
Conclusion
The Tribunal concluded that the Statement was, in effect, a transitional arrangement. They concluded that the appellant’s application fell to be determined in accordance with the Immigration Rules in force on 2nd March 2010 as his application was submitted on 9th February 2010 (and the SSHD’s decision was dated 2nd April 2010). The Upper Tribunal concluded that the First Tier tribunal’s decision was an error in law and the decision was set aside. The Tribunal went on to consider the issues that had been raised and concluded as follows:
The Statement of Changes in Immigration Rules came into operation on 3rd March 2010 and Paragraph 319C(i) also. The latter is a ‘freestanding subparagraph, divorced from but following upon subparagraph (h) and is to be construed accordingly. It follows that where the dates set out above apply, a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependent of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii)’.
5th July 2011
Overdraft facility accepted for the purposes of maintenance
Rana (PBS: Appendix C - overdraft facility) India [2011] UKUT 245 (IAC) (11 May 2011)
This Upper Tribunal case was heard on 3rd May 2011 at Field House. The facts of the case are as follows:
The appellant is an Indian national who obtained leave to enter the UK for one year in October 2009. The appellant made an in time application for further leave to remain in the UK however, this was rejected but the Secretary of State (in November 2010). The appellant appealed against the decision and the appeal was subsequently allowed. The Secretary of State applied for permission to appeal on the basis that the decision contained an error of law. This was granted and the appeal came before the Upper Tribunal.
Reasons for refusal
The Secretary of State essentially refused the appellants application due to the belief that he had outstanding course fees of £3,830 owed to Thames Valley University. Immigration Judge Sweet who presided over the case at the First Tier Tribunal was satisfied that the fees had been paid before the appellant lodged his application. However, the appellant was also required to satisfy the maintenance requirements and show that he had £1,200 in funds in accordance with Appendix C. The appellant had relied on his father bank statements which needed to show the level of funds to be held in the account for a 28 day period before the application. At the hearing, the appellant argued that his uncle had also been sponsoring him and a supporting statement was provided from his uncle along with a letter from his bank confirming that money was available to the uncle in the form of an overdraft facility.
Immigration Judge Sweet acknowledged, in line with the case of CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 305 (IAC) that the uncle could be a financial sponsor. However, it was queried whether an overdraft facility could be used to demonstrate availability of funds. Prior to Pankina, in the case of PO (points based scheme: maintenance: loans) Nigeria [2009] UKAIT 47, it was held that it could not be used but that was based on the policy guidance; nothing in the Immigration Rules bar reliance on an overdraft facility.
At the hearing, the appellant was unrepresented. The SSHD was represented and argued that an overdraft facility could not be relied upon. The Immigration Judge however, disagreed stating ‘I can see no reason why not’. Under the points based system, a certain amount of funds needs to be available for a period of 28 days before the application is made. The applicant does not need to show that the money is still available when the application is decided or at any point after the submission of his application. The immigration judge concluded that as long as the limit of the agreed overdraft facility had not been exceeded, then the funds were ‘available’ to him.
The appellant, at the hearing presented his bank statements which were healthy. The SSHD representative agreed that, on the facts of the case and in light of the available funds from the overdraft facility, there was adequate maintenance available to the appellant.
The SSHD’s appeal was accordingly dismissed.
July 2011
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