FA and AA (PBS effect of Pankina) Nigeria
| Jurisdiction | UK Non-devolved |
| Judge | C M G Ockelton |
| Judgment Date | 25 August 2010 |
| Neutral Citation | [2010] UKUT 304 (IAC) |
| Date | 25 August 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2010] UKUT 304 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, President
Mr C M G Ockelton, Vice-President
Senior Immigration Judge Allen
For the Appellants: Mr M Olatejau of Henshaw Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
FA and AA (PBS: effect of Pankina) Nigeria
The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the purposes of immigration appeals.
The principal appellant is a student at the University of the West of England undertaking an MSc in International Management. She started this course on 24 September 2007 and was due to complete it on 2 July 2010.
The second appellant is her husband and her dependant in this application.
On 29 December 2009 the Home Office refused an application made on or about 8 October 2009 for leave to remain as a Tier 4 (General) Student Migrant under the Points-Based System. The application was refused: the points claimed under Appendix C of the Immigration Rules were not awarded because the first appellant had not provided any evidence of funds. Under the calculation due under the rules she had to provide evidence that she had maintenance funds of £2,800. What she had in fact provided in the application was a number of certified bank statements from a Lloyds TSB account in the name of the second appellant, her husband.
There was ample evidence before the Immigration Judge that the first appellant had access to the funds in her husband's bank account but for cultural reasons chose to keep that account in the husband's single name. The evidence to this effect included the contents of the bank statements themselves showing payments out to the University of the West of England; a statement from the husband that the wife was able to access these funds; and a statement from the university that tuition fees had been in the past been paid by Mr Abidemi Adio.
The Immigration Judge heard this appeal on 22 February 2010 and dismissed it on 4 March 2010. He identified two reasons for doing so:
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(i) The last date on the bank statement was 24 September 2009 whilst the date of the application was either 3 October as the appellant asserted or 8 October as the respondent asserted and therefore the last entry did not cover the date of the application.
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(ii) The bank statement was in the sole name of the second appellant, the first appellant's husband. According to the Guidance issued by UKBA a student may in certain circumstances use the bank statements of his/her parents. But the Guidance does not permit a student to use the bank statement of his/her spouse to establish his/her case.
“The fact of the matter is the Immigration Rules and the Guidance require the funds to be available to the appellant. Despite the fact that the appellant's husband may have provided written confirmation that the funds are available to her, that consent may be withdrawn at anytime and so it does not assist the appellant in this appeal. I find that funds in the bank account of the appellant's spouse are not available for the appellant”.
Permission to appeal to the Upper Tribunal was granted by the Vice-President on 7 July 2010 in the light of the Court of Appeal decision in Pankina v SSHD [2010] EWCA Civ 719, dated 23 June. The appeal was listed before a panel consisting of the President, the Vice-President and SIJ Allen along with other cases concerned with the Points-Based System and the application of UKBA Guidance on 23 July 2010.
At the end of the hearing we indicated that we would allow the appeal. We now give our written determination explaining the reasons for doing so.
The first ground of the IJ's decision can be disposed of shortly. The bank statements that were presented by the first appellant were in fact dated 3 October 2009, as appears from their printed text, and were certified on that date as well. The rubric at the head of the statement says “the personal data on this statement was correct at the date of printing”. Whilst it is true that the last transaction on the last sheet of the bank statements, a debit of £10 in favour of the University of Bristol leaving a balance of £3,906, was dated 24 September; but the IJ has been misled into thinking that this was the date of the bank statement and that there was a gap between the last date on the bank statement and the date of application.
There was no such gap upon a proper reading of that statement. Whether the application was made on 3 or 8 October, the bank statement covered the position as of the date of application, since there would inevitably be some gap between the bank statement being obtained and its arriving in the Home Office for its evaluation.
Issue 2: use of the bank statement
That leaves the more important question, namely whether the appellant can rely upon her husband's bank account to demonstrate that she has funds available to her within the meaning of Appendix C of the Immigration Rules.
Para 11 of Appendix C of the Immigration Rules as varied on 31 March 2009 provides:
“Ten 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”
The first appellant's case is that she did provide evidence that funds were available to her by reason of specified documents namely a certified bank statement from a an acknowledged financial institution in the United Kingdom. The respondent's case is that the Policy Guidance issued in respect of such claims particularly paragraph 127 to 140 requires that apart from “Official Financial Sponsors” the bank statement submitted should be in the first appellant's own name or in the name of parents who are eligible as sponsors.
Those are not the requirements of Appendix C or any other part of the Immigration Rules read independently of the Guidance. The first appellant further argues that in the light of the Court of Appeal's decision in Pankina 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.
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