HM and Others (PBS – legitimate expectation – paragraph 245ZX(I) Malawi
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Allen |
| Judgment Date | 23 July 2010 |
| Neutral Citation | [2010] UKUT 446 (IAC) |
| Date | 23 July 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2010] UKUT 446 (IAC)
The 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 Appellant: Mr S Karim, Counsel, instructed by Zaidi Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
HM and others (PBS — legitimate expectation — paragraph 245ZX(l)) Malawi
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1. Funds are “available” to a claimant at the material time if they are under his control in an overseas bank account.
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2. Though, as is clear from Pankina v SSHD [2010] EWCA Civ 719 , policy guidance that has not been laid before Parliament before the inception of the Points-Based System cannot berelied on by the Secretary of State, it can give rise to a legitimate expectation that the Secretary of State will adhere to that guidance when considering an appellant's claim.
The appellants are nationals of Malawi. The first appellant is married to the second appellant and the third appellant is their son.
The first appellant entered the United Kingdom on 6 May 2005 with entry clearance as a working holidaymaker. Her leave was subsequently varied and extended permitting her to remain as a student, the last period of leave being granted on 27 June 2008 until 30 June 2009. The second appellant arrived in the United Kingdom on 25 September 2001 and was given leave to enter until 21 October 2002 as a student. That leave was extended on a number of occasions the most recent extension being until 21 March 2007. He and the first appellant married on 8 October 2006 in Malawi, and on 25 April 2007 the second appellant's leave was varied and extended until 30 June 2008 as the spouse of a student, and that leave was again extended until 30 June 2009 on the same terms. The third appellant was born in the United Kingdom on 8 April and was granted leave to remain in the United Kingdom from 27 September 2008 until 30 June 2009 as the child of a student
On 29 June 2009 all three appellants applied for further leave to remain, the first appellant for leave to remain as a Tier 4 (General) Student and the second and third appellants applying for leave to remain as respectively her spouse and her dependent child. The first appellant proposed to study for a BA (Honours) degree in business management at the Lighthouse Business College in Manchester, the course to commence on 1 September 2008 and end on the 31 August 2010. The course fees were £4,000 of which she had paid £500 and she had £1,200 towards the cost of her maintenance for a two month period.
In a covering letter together with her application form the first appellant said that in around October 2008 she had returned to the United Kingdom from a visit to Malawi at which time she had US$9,600 and £650 to provide for her and for the other appellants' maintenance until June 2009. She said: “At the moment we have an extremely [sic] shortage of foreign currency in my country, so its not been possible to send any amount more than $1,000 as a result, we have been asking those that wished to send money to Malawi to give us here and have the money given to them or their relatives back home in our local currency”. She also submitted a letter from a Dr R J Gombwa under the letterhead of the Chitawira Private Hospital in which he said he was willing to continue his financial support for the first appellant and her family while she was studying in the United Kingdom. Statements of the account of the hospital were submitted.
The application was refused on 10 August 2009 on the basis that the Secretary of State was not satisfied that the first appellant qualified for 10 points under Appendix C of HC 395 and noted that there was a gap of more than a month between the date on which the first appellant's current leave had expired (30 June 2009) and the date on which the course at the Lighthouse Business College, Manchester began (1 September 2009). With regard to the former, it was considered the that first appellant had to show that she had access to funds totalling £6,300 made up of her outstanding course fees of £3,500, her own maintenance for two months at £600 a month and the maintenance of the second and third appellants for a period of two months at £400 per month for each of them. The bank statements she had produced showed only £3,269.97, and the letter from Dr Gombwa did not assist, because the published Guidance permitted “third party” support only in specified circumstances, none of which applied.
The appellants appealed against this decision, and the appeal was heard by an Immigration Judge in January 2010. The judge dismissed the appeal, agreeing with the Secretary of State's decisions in each case and also dismissing an appeal under Article 8. He noted evidence produced to him from the Chitawira Hospital and also evidence of an account in the joint names of the first and second appellants covering the period 4 June to 17 August 2009 showing a credit balance on 20 June 2009 of the equivalent of nearly £35,000. The appellants said that they had applied for permission to cover the transfer of funds from their account with the National Bank of Malawi to the United Kingdom but had only been granted permission to transfer a total of US$1,000. They had been able to obtain sterling in the United Kingdom by making arrangements with individuals who wished to remit funds to Malawi and who would give them the funds in sterling and the appellants had then transferred funds from their account in Malawi to the intended beneficiaries. They had no documentary evidence to attest to these transfers. They were obliged to effect these transfers because there was a lack of foreign exchange in Malawi. The Immigration Judge was of the view, in respect of the requirement of paragraph 11 of table C of HC 395, that funds in sterling had to be available and the same requirement existed in Appendix E. He did not consider that it was possible to equate the having of funds in Malawi with them being available to the individual concerned in the United Kingdom. The evidence did not show that on 23 June 2009 (since the date of application was 29 June 2009, we think he must, or should, have meant that date) there was on that particular day a sufficient demand by people wishing to send funds to Malawi to show that on that day the appellants could have obtained in sterling the sums required. They had not received such sums in sterling bearing that date as the credit balances on their accounts showed, and the subsequent history of payments out of the account of the National Bank of Malawi did not show that they had then received sums of that order and magnitude on that day.
As regards the other issue, he considered that the requirements of paragraph 245ZX of HC 395 were fulfilled on his interpretation of section 3C of the Immigration Act 1971.
The appellants sought permission to appeal to the Upper Tribunal, arguing that they had no notice of the amounts referred to having to be shown for the purposes of the appeal, but the Immigration Judge had relied upon factors which had not been relied on by the Secretary of State. Permission to appeal was granted on the basis that it was appropriate for the Tribunal to consider the distinction drawn by the judge between having funds and having funds available and also to consider whether the judge was correct in his interpretation of the requirement that not more than a month should lapse between the end of an applicant's current leave and the beginning of the course on which he or she had enrolled.
The hearing before us took place on 23 July 2010. Mr S Karim, instructed by Zaidi Solicitors, appeared on behalf of the appellant. Mr C Avery appeared on behalf of the Secretary of State.
We consider first the issue of the availability of funds. The first appellant in order to succeed requires to qualify for 10 points under Appendix C of HC 395. There it is stated at paragraph 11 that 10 points will only be awarded if...
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