Upper Tribunal (Immigration and asylum chamber), 2020-02-25, JR/02801/2019
| Jurisdiction | UK Non-devolved |
| Date | 25 February 2020 |
| Published date | 02 March 2020 |
| Hearing Date | 17 February 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/02801/2019 |
JR/2801/2019
IAC-FH-LW-V1
Upper Tribunal
Immigration and Asylum Chamber
JR/2801/2019
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 17 February 2020
Before
UPPER TRIBUNAL JUDGE KEITH
Between
The Queen (on the application of Rohit Singh Mehta)
Applicant
v
Secretary of State for the Home Department
Respondent
Mr L Lourdes, Counsel, instructed by JML Diplock Solicitors, on behalf of the Applicant
Mr Z Malik, instructed by the Government Legal Department appeared on behalf of the Respondent.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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These are a written record of the oral reasons given for the judgment at the hearing.
The application
Background
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The applicant, an Indian national, applied on 21 May 2019 for judicial review of the respondent’s decisions of 17 December 2018 and 22 February 2019 to refuse the applicant’s application for leave to remain as the dependant of a Tier 4 (General) Migrant.
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As summarised by Upper Tribunal Judge Norton-Taylor in his later grant of permission to proceed with the application, the respondent initially refused the applicant’s application under paragraph 319C of the Immigration Rules in the December 2018 decision, on the basis of the applicant was not in a genuine and subsisting relationship with his sponsoring wife, and in addition, could not satisfy the maintenance requirements of the Immigration Rules. In respect of the latter point, the respondent relied in the absence of a sponsorship declaration from the claimed provider of funds, namely the applicant’s father-in-law.
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In the second decision of February 2019, which was in response to a request for administrative review, the respondent accepted that the applicant’s relationship with his wife was genuine and subsisting and so reissued the initial decision, while maintaining her refusal of the application because the applicant did not meet the maintenance requirements.
Grounds
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In the grounds, the applicant challenged both decisions on the basis that he had submitted a sponsorship declaration from his father-in-law, with his application for leave to remain, and that the respondent had erred in failing to have regard to that evidence. Alternatively, it was said that if the evidence had not in fact been uploaded with the application, the respondent had erred in failing to apply evidential flexibility in his case.
The basis of the respondent’s resistance to the orders sought
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In the Acknowledgement of Service, the basis of the respondent’s rejection of the application appeared to change once again. As set out at paragraphs [16] to [23], the respondent acknowledged that the decisions referred to the financial maintenance requirement by reference to sponsorship from the applicant’s father-in-law. The decisions gave the impression that the reason that the application was refused was because the applicant did not provide a letter of consent from his father-in-law for access to his funds. The respondent acknowledged that that was not correct. Rather, the requirements of appendix E were that the funds must be available to the applicant or his wife. Nevertheless, the AoS asserted that the decisions were taken on the correct basis, namely that reliance on funds from the applicant’s father-in-law was not a satisfactory source of finance, as defined in appendix E, so that any request for further information under the respondent’s evidential flexibility policy would serve no purpose, because it would not alter the fact that the funds themselves were not from an acceptable source. The respondent accepted that it would have been preferable if the reasoning as recorded in its own internal ‘GCID’ notes had been provided in the December 2018 decision, but that the end-result was the same. The applicant was seeking to rely on funds in a third-party account held in the name of his father-in-law, which was not acceptable. In further detailed grounds of defence dated 20 August 2019, the respondent, in the alternative, resisted the application because it was inevitable that the application would fall for refusal in light of the absence of evidence of the required funds in the bank account of the applicant or his wife, so that section 31(2A) of the Senior Courts Act 1981 applied.
The grant of permission
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On 5 July 2019, Upper Tribunal Judge Norton-Taylor granted permission on the papers, in light of the position adopted by the respondent in the Acknowledgement of Service. In doing so, he regarded there as being two points flowing from the respondent’s revised position that only funds held in the name of the applicant or his wife could be relied on to prove maintenance. First, it was arguable that the respondent’s original decision and the administrative review decision were flawed. Second, if the respondent’s contention on the maintenance requirements is correct, it may be the case of the applicant’s application would have been refused in any event, but the correctness of that assertion would need to be assessed.
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In granting permission, UT Judge Norton-Taylor noted that the applicant’s representatives may wish to consider making application to amend the grounds of challenge, but that that was a matter for them. He also gave standard case management directions, including in relation to the production of a hearing and authorities bundle and skeleton argument. The applicant did not comply within the stipulated timeframes with those directions and this resulted in a hearing of the application on 11 October 2019 being adjourned, as a result of which wasted costs were ordered against JML Diplock Solicitors. I gave further orders on 22 November 2019, permitting the applicant’s application to amend the grounds of challenge and to allow the respondent to serve additional grounds in response.
The applicable law
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The following provisions of the Immigration Rules are relevant:
“319C. Requirements for entry clearance or leave to remain
To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant …an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(g) Unless the applicant is applying as the Partner of a Relevant Points Based System Migrant who is a Tier 1 (Investor) Migrant or a Tier 1 (Exceptional Talent) Migrant, there must be a sufficient level of funds available to the applicant, as set out in Appendix E.”
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Appendix E in turn states:
“Immigration Rules Appendix E: maintenance (funds) for the family of Relevant Points Based System Migrants
A sufficient level of funds must be available to an applicant applying as the Partner ….of a Relevant Points Based System Migrant …A sufficient level of funds will only be available if the requirements below are met.
(aa) Paragraphs 1A and 1B of Appendix C also apply to this Appendix.
(c) Where the applicant is applying as the Partner of a Relevant Points Based System Migrant or Appendix W Worker the relevant amount of funds must be available to either the applicant or the Relevant Points Based System Migrant [my emphasis] or Appendix W Worker.
(f) In all cases, the funds in question must be available to: (i) the applicant, or
(ii) where they are applying as the partner of a Relevant Points Based System Migrant…, either to them or to that Relevant Points Based System Migrant
(g) The funds in question must have been available to the person referred to in (f) above on the date of the application and for:
(ii) a consecutive 28-day period of time, if the applicant is applying as the Partner of a Tier 4 (General) Student
(j) In all cases the applicant must provide the specified documents as set out in paragraph 1B of Appendix C…”
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Appendix C concludes:
“Immigration Rules Appendix C: maintenance (funds)
1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below:
(a) The funds specified in the relevant part of Appendix C must be available to the applicant on the date of the application (as defined in Part 1 of these Rules)…
1B. In all cases where Appendix C or Appendix E states that an applicant is required to provide specified documents, the specified documents are:
(a) Personal bank or building society statements which satisfy the following requirements:
(i) The statements must cover:
(3) a consecutive 28-day period of time, if the applicant is applying as a Tier 4 Migrant or the Partner ….of a Relevant Points Based System Migrant who is a Tier 4 Migrant
(ii) The most recent statement must be dated no earlier than 31 days before the date of...
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