Molla (established presence – date of application)
| Jurisdiction | UK Non-devolved |
| Judge | or |
| Judgment Date | 05 November 2010 |
| Neutral Citation | [2011] UKUT 161 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 November 2010 |
[2011] UKUT 161 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Storey
For the Appellant: In person
For the Respondent: Ms H Horsley, Home Office Presenting Officer
Molla (established presence — date of application) Bangladesh
When assessing whether a Tier 4 (General) applicant has an “established presence”, the relevant date for calculating whether he has completed a course of study within specified periods of time is the date of application.
The appellant is a citizen of Bangladesh. He attended the hearing unrepresented. I explained that I would assist him as far as I could in ensuring his case was put to best effect.
On 30 March 2010 he had applied for leave to remain as a Tier 4 (General) Student Migrant under the Points Based System and for a biometric document. In a determination notified on 5 August 2010 the First-tier Tribunal (Immigration Judge Monro) dismissed his appeal against a decision dated 12 May 2010 that he did not meet in full the requirements of para 245ZX(d) of HC 395 as amended.
The IJ concluded that the appellant did not qualify for reduced maintenance levels as he had not shown he had “an established presence studying in the United Kingdom” and so as a result he had not shown he had sufficient in funds. The IJ stated:
“As he started a new course in October, that 6 month course would have had to cover the period April to September 2009. There is no information before me as to what course if any the appellant was studying during the relevant period”.
The appellant was successful in obtaining permission to appeal on the basis of a submission that the IJ was wrong to find that he had not shown he met all the requirements of para 245ZX. In particular he submitted that he had in fact demonstrated that he had completed a course that was at least 6 months long during the last period of his leave (his last grant of leave was from 26 March 2009 to 31 March 2010) and so should have been treated as qualifying for a reduced maintenance level.
In her determination the IJ had cited the respondent's Tier 4 Policy Guidance. She referred to paras 34–38 but in fact the provisions which she cited are to be found at paras 104–112 of Tier 4 of the Points Based System – Policy Guidance version 03/10 “to be used for all Tier 4 applications made on or after 3 March 2010”. The relevant passages are:
“104. The amount of money a student had to show will depend on whether he/she already has an established presence in the United Kingdom. A student that has an established presence in the United Kingdom needs to show less money for living costs.
A student … has an established presence studying in the United Kingdom if he/she was last given permission to stay under Tier 4, as a student … and he/she:
Has completed a single course of at least six months during his/her last grant of leave;
orIs currently studying a single course, of which he/she has completed at least six months;
orIs currently studying and has completed a single course of at least six months during his/her current permission to stay.
And his/her last grant of leave ended no more than four months before his/her Tier 4 application was made; or
He/she is currently following a course of study.
A student cannot amalgamate two or more courses to make up the six months' study.
…
106. A student can qualify for the reduced maintenance levels whether he/she is applying from inside the United Kingdom or from overseas.
107. A student that does not have an established presence studying in the United Kingdom must show that he/she has money for his/her living costs for each month of his/her course up to a maximum of 9 months.
108. A student with an established presence studying in the United Kingdom must show that he/she has money for his/her living costs for each month of his/her course up to a maximum of 2 months.
…
109. A student that does not have an established presence studying in the United Kingdom must show that he/she has money for his/her course fees plus:
Inner London — £800 for living costs for each month of their course up to a maximum of 9 months …
Outer London …
110. A student that does have an established presence studying in the United Kingdom must show that he/she has money for his/her course fees plus:
Inner London — £800 for living costs for each month of their course, up to a maximum of 2 months.
Outer London …
112. Examples of the money required are given in Annex 5.”
By the time the appellant's application for permission to appeal came before a Senior Immigration Judge the Court of Appeal had given its judgment in Pankina [2010] EWCA Civ 719. Understandably, in view of the IJ's seemingly exclusive reliance on Policy Guidance, this led the SIJ concerned to consider that there was an arguable error of law. However it does not appear to have been appreciated that the applicable Immigration Rules themselves specify in Appendix A both what is “established presence” and the requisite level of funds (in addition to course fees) needed for Tier 4 applicants.
Para 245ZX(d), as amended on 6 April 2010 (HC 439), states that to qualify “The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C”. the latter state:
“Tier 4 (General) Students
10. A Tier 4 (General) Student must score 10 points for funds.
11. 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. Notes to accompany the table appear below the table.
Criterion
If studying in inner London:
(i) Where the applicant does not have an established presence studying in the United Kingdom, the applicant must have funds amounting to the full course fees for the first academic year of the course, or for the entire course if it is less than...
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