Rodriguez (Flexibility Policy) [Upper Tribunal]

JurisdictionUK Non-devolved
JudgeThe Honourable Mr. Justice McCloskey,Spencer,Spencer UTJ,McCloskey J
Judgment Date31 January 2013
Neutral Citation[2013] UKUT 42 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date31 January 2013

[2013] UKUT 42 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

The Honourable Mr. Justice McCloskey

and

Upper Tribunal Judge Spencer

Between
Jovy Octubre Rodriguez
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: In person, representing herself.

For the Respondent: Ms Gough (Home Office Presenting Officer).

Rodriguez (Flexibility Policy)

Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (“PBS”). This was revised with effect from May 2011. In its policy letter of 19th May 2011, UKBA states that during an unspecified trial stage applicants will be contacted where mandatory evidence is missing from their applications and given the opportunity to provide this. UKBA is under a public law duty to give effect to this policy in all cases to which it applies.

As regards all other applications, to which the policy letter does not apply, UKBA case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998.

DETERMINATION AND REASONS
The Matrix of this Appeal
1

The material facts underlying this appeal are uncontentious. Jovy Octubre Rodriguez (“ The Appellant”), who is aged thirty-two years (having been born on 19 th September 1980), is a national of The Philippines. She was lawfully present in the United Kingdom from 15 th November 2010, having been granted permission to enter for the purpose of studying a professional diploma course in tourism and hospitality management (NVQ Level 5) at Walthamstow Business College. She completed this course in December 2011 and, en route, she achieved a further vocational qualification [NVQ Level 3], in health and social care. She was then admitted to the London College of Social and Management Sciences for the purpose of studying a course (QCF Level 6) designed to secure a diploma in business and administrative management. The Appellant's period of permission to remain in the United Kingdom was scheduled to end on 1 st February 2012 and, in advance thereof, on 31 st January 2012 she applied formally in writing for extended leave to remain.

2

By virtue of the Tier 4 (General) Requirements contained in Appendix C of the Immigration Rules, the Appellant, in order to secure extended leave to remain, was obliged to demonstrate that she had been in possession of £1,200 during a period of 28 consecutive days. In the Appellant's case, this 28 day period began on 28 th December 2011 and expired on 24 th January 2012. This exercise entailed the completion and submission by the Appellant of a standard official document, the Tier 4 (General) application form (version 07/11). This is a complex form, consisting of 43 pages, which the Appellant duly submitted. Her evidence was that, at this juncture, she received a letter from the Respondent to the effect that … a case worker would write to the Appellant as soon as possible if there was any problem with the validity of the application, such as missing documentation (per paragraph [13] of the first instance Determination). Neither the Appellant nor the Respondent has been able to produce a copy of this letter, although the Appellant has produced copies of similar letters said to have been sent to fellow students. This is confirmatory of the Appellant's assertion, which was both persuasive and undisputed. We find accordingly.

3

From the Appellant's perspective, the next development was a letter dated 21 st April 2012 from the Respondent, refusing her extended leave application. The letter notified the Appellant that the decision was based on the Immigration Rules and the Tier 4 Policy Guidance. Two reasons for the refusal were expressed. Firstly, it was stated that the Appellant had falsely misrepresented her achievements in the TOEIC English Language examinations, thereby attracting a refusal under paragraph 322(1A) of the Immigration Rules, on account of her alleged deception. Secondly, it was stated that she had failed to score the requisite number of points, 40 in total, for “ attributes” and “ maintenance (funds)”. The explanation provided was formulated thus:

Your course fees are £2,000 for the first year of your course and you have paid this fee in full. As such, you are required to show that you are in possession of £1,200 for a consecutive 28 day period to meet the [Tier 4 Guidance requirements]. As the closing date of the bank statements submitted in support of your application are [sic] dated 24 th January 2012, you have to show evidence of maintenance for twenty-eight days from 28 th December 2011 to 24 th January 2012. However, between 28 th December 2011 and 24 January 2012 your bank statements state that you are in possession of between just £903 and £1,704. As such, you have not demonstrated that you have the level of funds required to be granted as a Tier 4 (General) student migrant. It has therefore been decided that you have not met the requirements and no points have been awarded for maintenance.”

4

The Respondent's letter of refusal contains an accurate exposition of the information disclosed in the bank statements submitted by the Appellant with her completed application form. In short, the Respondent's decision to award the Appellant no points was based on two perceived deficiencies in the financial information supplied by her:

(i) The bank statements spanned a period of 17 days only, rather than 28 days.

(ii) Whereas these statements disclosed a credit balance exceeding £1,200 for most of this period, the balance fell to £903.74 during four days, from 20 th to 23 rd January 2012.

This gave rise to the Respondent's assessment that the application failed on account of insufficiency of funds and insufficiency of period.

The Initial Appeal
5

It is recorded in paragraph [25] of the first instance Determination that, having exercised her right of appeal against the Respondent's decision, the Appellant compiled a hearing bundle which contained, inter alia,

(a) A further Lloyds TSB statement spanning the period 23 rd December 2011 to 13 th February 2012, evidencing a credit balance in excess of £1,200 for the entire period except for the four days between 20 th and 23 rd January 2012 ( supra).

(b) Statements from the RCBC Savings Bank in the Philippines evidencing that throughout the period in question she had savings there of almost £600.

6

In paragraph [26] of the first instance Determination, Immigration Judge Chamberlain stated:

However, section 85A of the Nationality, Immigration and Asylum Act 2002 inserted by section 19 of the UK Borders Act 2007 provides that the Tribunal may only consider evidence adduced by the Appellant if it was submitted at the time of making the application”.

This was followed by an observation that the further evidence on which the Appellant was seeking to rely –

… did not cover the entire period required by the rules, i.e., from 31st December 2011 to 27th January 2012”.

We consider that the Judge was in error in this discrete respect, since the total period to which the further evidence related was one of 53 days and furthermore (as noted above), the relevant 28 day period ran from 28 th December 2011 to 24 th January 2012. The effect of all the evidence was that the Appellant proved herself capable of demonstrating at the material time her ability to comply with the Tier 4 (General) requirements. While the Judge does not indicate whether the new evidence would be admitted – and, thus, considered by the Tribunal – it would appear that, by implication, it was excluded. We consider that it had to be disregarded, by virtue of section 85A of the 2002 Act. Thus the judge's error noted above was immaterial. We too must disregard the further evidence in question. The Judge concluded that the Respondent had correctly declined to award the Appellant any points under Appendix C of the Immigration Rules. The Judge's second conclusion was that the Respondent's decision did not infringe the Appellant's rights under Article 8 ECHR. The appeal was dismissed accordingly.

7

The false representations issue under paragraph 322(1A) of the Rules, which concerned the evidence of the Appellant's English language qualifications, was resolved by the First-tier Tribunal in her favour. Thus her application and initial appeal failed on the sole ground of insufficient points which, in turn, was based on inadequacy of documentation.

The Central Issue: the Respondent's Policy
8

The Appellant appealed to the Upper Tribunal. The central focus of her grounds of appeal was a policy operated by the Respondent. This is described as the “ flexibility policy”. We shall elaborate on its terms infra. Two particular matters were not in dispute between the parties. The first is that the Respondent does indeed have a policy of this nature and that this was in force at the time of the impugned decision. The second is that this policy was not applied to the Appellant's application for extended leave to remain. Building on this factual foundation, the basic contention advanced by the Appellant was that both the Respondent and the first-tier Tribunal had erred in law since the impugned...

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