Ejifugha (Tier 4 – funds – credit)
| Jurisdiction | UK Non-devolved |
| Judge | Lady Stacey,Storey |
| Judgment Date | 09 May 2011 |
| Neutral Citation | [2011] UKUT 244 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 May 2011 |
[2011] UKUT 244 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lady Stacey
SENIOR IMMIGRATION JUDGE Storey
For the Appellants: No appearance
For the Respondent: Mr P Nath, Home Office Presenting Officer
Ejifugha (Tier 4 — funds — credit) Nigeria
The requirement in paragraph 11 of Appendix C of the Statement of Changes in the Immigration Rules HC 395 (as amended) is that the funds be “available”. It is unhelpful to try to paraphrase that.
Funds required by paragraph 11 of Appendix C can take the form of a credit card limit.
The first and second appellants are husband and wife. They are both citizens of Nigeria. The first appellant has appealed against a decision to refuse to grant further leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system (PBS). The second appellant has appealed against a refusal to grant leave to remain in the United Kingdom as the first appellant's spouse. Her claim is dependent on the success of the first appellant's claim.
The appellants completed forms in respect of the application for leave to remain on 06.04.10. They submitted them to the respondent who refused them by letter dated 14.06.10. The reason for refusal was that the first appellant had claimed 10 points under Appendix C of the Immigration Rules HC 395 (as amended) but the documents he provided did not demonstrate that he had been in possession of the required funds for 28 days prior to his application. Therefore the respondent decided that the appellant had not met the requirements of the Rules and decided to refuse his application under paragraph 245ZX(d) of the said Rules. The second appellant's application was refused as it was dependent on the first appellant's application.
The respondent set out the funds required in terms of the Immigration Rules applicable to a person studying at an Inner London establishment with one dependant. The course fee having been paid, the sum required was £2,666. The respondent noted that the documents submitted with the application showed that in the period 06.03.10 to 02.04.10 the first appellant was in possession of no more than £2,300.07.
The appellants lodged notices of intention to appeal to the First-tier Tribunal (hereafter “FtT”) in which the first appellant sought to argue that the decision was erroneous in that it failed to take account of statutory maternity pay (SMP) available to the second appellant, and on grounds of the health of the baby born to the first and second appellants on 20.04.10 and on grounds relating to errors of fact, it having been noted from the decision that the course fees referred to were thought to be for the first year of the course. The first appellant had in fact been granted leave to enter as a student in 2007 and had been studying in the UK since.
The Tier 4 application form filled in by the first appellant includes at paragraph 9 the following:–
“The student must have £800 for each calendar month of their course up to a maximum of two months. Please state what this amount is.”
The first appellant filled that in as £1,600. Paragraph L24 of the same form is in the following terms:–
“Please tick to confirm the documents submitted as supporting evidence to show the student has access to the required amount of money for maintenance and funds.”
The first appellant ticked the box for “personal bank or building society statements”.
The form completed by the second appellant at paragraph K13 is in the following terms:- “The dependent must have £533 for each calendar month of the main applicant's course up to a maximum of two months. Please state what this amount is.” The second appellant filled it in as £1,066.
Paragraph K23 of the same form is in the following terms:–
“Please tick to confirm the documents submitted as supporting evidence that the dependant have (sic) access to the required amount of money for maintenance and funds.”
The second appellant did not tick any of the boxes.
The FtT heard the case on 7.10.10. The appeals had initially come before an Immigration Judge to be decided on the papers. He declined so to determine the appeals, observing that the appellants had filed further documentary evidence not intimated to the respondent and further, that the case of Pankina [2010] EWCA Civ 719 which had been decided after the respondent's refusal of the claim had potential application. Directions were given for a skeleton argument from the respondent, which was lodged together with copies of the UKBA based PBS (maintenance) funds policy document dated 23 July 2010 and a copy of two cases, FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) and CDS (PBS – “available” – Article 8) Brazil [2010] UKUT 00305 (IAC). By that skeleton argument the respondent noted that the appellant's wife had a balance in her Halifax account of £390 on 2 April 2010 making their joint funds £2,590.07 at the highest balance in the one month relevant period. In light of the judgment in the Pankina case the respondent submitted that the required maintenance level of £2,666.00 was not met on any one day (that being the requirement in the guidance issued after Pankina) in the month preceding the application date.
The FTT found that the SMP on which the appellant sought to rely was a total sum of £4,987 due to be paid monthly until December 2010. He found, correctly, that the whole amount cannot be taken into account because it is paid in instalments and the full amount would not have been paid until 12 December 2010.
The Immigration Judge found that, by taking into account the sum in the first appellant's bank account together with the sum in the second appellant's bank account for any one day in the 28 days prior to the application, the highest sum they had was £2,590.07. As it was...
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