CDS (PBS "available" Article 8) Brazil; CDS v Secretary of State for Home Department

JurisdictionUK Non-devolved
JudgeC M G Ockelton
Judgment Date25 August 2010
Neutral Citation[2010] UKUT 305 (IAC)
Date25 August 2010
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2010] UKUT 305 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, President

Mr C M G Ockelton, Vice-President

Senior Immigration Judge Allen

Between
CDS
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: In person

For the Respondent: Mr C Avery, Home Office Presenting Officer

CDS (PBS: “available”: Article 8) Brazil

1. 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.

2. Article 8 does not give an Immigration Judge a free-standing liberty to depart from the Immigration Rules, and it is unlikely that a person will be able to show an article 8 right by coming to the UK for temporary purposes. But a person who is admitted to follow a course that has not yet ended may build up a private life that deserves respect, and the public interest in removal before the end of the course may be reduced where there are ample financial resources available.

DETERMINATION AND REASONS
1

This appeal was heard on 23 July along with the appeal in the case of FA and AA to which we will make further reference in this determination.

2

The appellant is a national of Brazil who had been granted leave to enter the United Kingdom as a student on 30 July 2007 and had been granted extensions of stay until 31 October 2009. During this period she had been financially supported by two sponsors, Dr Rodgers and Dr Carroll.

3

On 26 October 2009 she made an application for extension of stay as a Tier 4 (General) Student Migrant under the Points Based System. The application was refused on 12 January 2010 because it was concluded that she did not comply with Appendix C to the Immigration Rules, concerned with maintenance and available funds. Her maintenance requirement was £2,695, but she had only £1,064.69 in her account on the date of application. She had provided a sponsorship letter from Dr Rodgers and Dr Carroll. 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.

4

The appellant appealed and the appeal was heard before IJ Jones at Newport on 18 March 2010. The appellant relied on a statement from the two doctors dated 25 January 2010 that included the following:

“Had Ms de Silva's sponsors been privy to the new rules, suitable maintenance funds would have been made available to Ms de Silva and appeared in her personal bank account in accordance with the ‘Maintenance funds’ scoring system.

Ms de Silva is now unable to complete her studies and take her examinations: firstly, the rules that allowed her entry into the UK to fulfil her educational aspirations have been revoked before completion of the said course and examinations and, secondly, the UK citizens previously deemed suitable sponsors for an individual wishing to be educated in the UK are no longer deemed suitable.”

5

The IJ determined the appeal by applying the guidance and concluded that the appellant could not meet the definition of sponsor in that guidance and therefore the requirements of paragraph 245ZX(d) were not met.

6

The IJ went on to consider Article 8 and concluded that there was a private life in the United Kingdom that would be adversely effected by the immigration decision so as to “potentially engage the operation of Article 8”. However, in considering the question of proportionality and striking a fair balance between the interests of the community and a well-established student who wished to complete her education in the UK, it was concluded that any interference was proportionate:

“She has not satisfied the requirements of paragraph 245ZX of the Immigration Rules. She also knew, as a student, that she was only permitted to remain in the United Kingdom for a specific period of time. In all the circumstances, and having regard to the need for firm and fair immigration control, I find that the interference with the appellant's private life is not sufficiently serious and I find that Article 8 of the European Convention is not engaged”.

7

Permission to appeal to the Upper Tribunal was granted by the Vice-President on 8 July 2010 in the light of the decision of the Court of Appeal in Pankina v SSHD [2010] EWCA Civ 719.

8

For reasons we have already given in the case of FA and AA (above) we conclude that the decision in Pankina at [28], [29] and [33] means 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 not otherwise spelt out in the Immigration Rules themselves. In Pankina the migrant respondent had not complied with the requirement of the Guidance to have had the requisite funds in the bank account for three months before the date of application.

9

Mr. Avery submitted, on instructions, that the decision in Pankina was confined to the dis-application of the three month rule and pointed to the conclusion on the constitutional issue at [37]. We cannot agree. In our judgment the Court of Appeal was applying the answers to the constitutional questions it posed at [21] to the particular provision of the Policy Guidance that had led the applicants to fail in their extension applications. We further note that Foskett J concluded that Pankina was of wider application in his judgment in English UK [2010] EWHC 1726 (Admin) at [74] to [77].

10

We are satisfied that in applying the guidance as a source of mandatory additional obligation as to the identity of permissible sponsors the IJ erred in law. We set aside the determination and remake it for ourselves. There is no need to hear further evidence. We were informed that the appellant has continued to make progress with her studies and has been able to continue to maintain and accommodate herself without recourse to public funds.

Compliance with Appendix C
11

HC 314 provided that with effect from 31 March 2009 Tier 4 General Students must score 10 points for funds and

“10 points will only be awarded if the funds shown in the table below are available to the applicant and the applicant provides the specified documents to show this”.

12

We are satisfied from the evidence that Drs Rodgers and Carroll had a combined income of over £300,000. They had the necessary resources at the relevant time and were willing to transfer such funds as were needed to ensure that the appellant met the maintenance requirements of the Immigration Rules were met, in this case some £1,631 to bring the balance in the appellants account up to £ 2,695.

13

In the absence of specific additional...

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