Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00228/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 May 2013
On 4 June 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE WARR

Between

rufan aslam gill

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Alef (Maxim Solicitors)
For the Respondent: Mr Tarlow

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan born on 27 December 1990. On 29 January 2011 he was granted leave to enter the United Kingdom as a student until 31 December 2011. He was studying business management at the School of Business and Commerce. He completed that course successfully in December 2011.

2. He made a further application for leave to remain which was refused on 11 November 2012 and the appellant’s appeal from that decision is the subject of these proceedings.

3. To deal with one important matter first, it was initially the Home Office contention that the appellant had not applied prior to the expiry of his existing leave on 31 December 2011. That would have meant he had no right of appeal against the decision. However this matter was resolved in the appellant’s favour at the hearing of his appeal at the First-tier Tribunal on 13 March 2013. There has been no challenge to that aspect of the decision. The judge found that the appellant had submitted the application by recorded delivery on 31 December 2011. The appellant’s leave accordingly continued by virtue of the application and appeal process.

4. However there was a further complication. The appellant had applied for leave to remain on the basis of his admission to Alexander College in order to study a postgraduate diploma in information technology. Unfortunately that college had its sponsor licence revoked by the respondent. On 21 June 2012 the Secretary of State invited the appellant to submit a new Confirmation of Acceptance for Studies from another college and he was given 60 days to do so. On 21 August 2012, within the allotted period, the appellant submitted an amended application with a new CAS from West City College in Rainham, Essex.

5. The respondent refused the application on maintenance grounds on 11 November 2012.

6. Unfortunately for the appellant he was unaware that during the interval between his lodging the application in December 2011 the maintenance requirement had been made more onerous. Instead of having to show maintenance of £600 for two months for out of London colleges or £1,200, he needed £1,600. The matter is complicated by virtue of the fact that the appellant’s application was initially to study at an inner London college, Alexander College. He needed to show a maintenance figure of £1,600 at that college at that time.

7. It is perhaps not necessary to go into the precise figures at any great length because it is conceded by Mr Alef that the judge was correct to hold that the appellant could not meet the relevant maintenance requirements of the Rules. There is no dispute about the figures set out in the determination subject to one typographical correction in paragraph 15 where the figures for inner London and outer London colleges have become transposed.

8. The judge noted in paragraph 31 of the determination that the appellant’s Lloyds TSB bank statement which accompanied the December 2011 application at no stage indicated a balance exceeding £1,250 for the requisite 28 day period proceeding the date of the application. When the appellant submitted the subsequent application the Lloyds TSB statements similarly did not demonstrate possession of the requisite funds for the requisite period. This was because, as I have explained before, the maintenance requirements had been raised in the intervening period.

9. There was however further material before the First-tier Judge. This had not been placed before the respondent. The appellant relied on an overseas Muslim Commercial Bank account in Pakistan which held approximately £11,000 as of 20 August 2012. The judge accepted that those funds would have been available as at the date of the initial application. However that did not assist the appellant with his appeal under the Rules, the material having not been put before the respondent at the proper time. Accordingly the appeal under the Rules failed.

10. In relation to Article 8 the judge directed himself by reference to Razgar [2004] UKHL 27 and referred to CDS Brazil [2010] UKUT 00305 and Pankina v Secretary of State [2010] EWCA Civ 719. The judge found that the appellant had completed in December 2011 the course of study for which he had been granted leave to enter the United Kingdom – the diploma in business management. The studies he commenced with Alexander were in the field of IT, which, while not a wholly unrelated subject area was not one “which is obviously a career progression from his initial course.” The determination concludes as follows:

“40. Additionally, and by his own admission, the application which the appellant submitted in December 2011 did not even demonstrate that the appellant held the requisite funds at that stage, namely the £1,600 referred to, for even one day, let alone the requisite 28 day period, even though the appellant clearly appreciated that he was required to demonstrate possession of £1,600 at that stage, as he completed the relevant box in the application form, which confirmed this fact. Whilst I appreciate and accept that the appellant held some additional funds in his MCB bank account in Pakistan, he did not produce any evidence of possessing those funds to the respondent at any stage prior to the appeal itself. Further, he has still not produced any MCB bank statement evidence which establishes precisely what level of funds he held in his MCB bank account in December 2011.

41. What is also clear, and not in dispute, is that, when the appellant submitted his variation application in August 2012, he still did not provide bank statement evidence which established that he held the requisite level of funds in December 2011, although I accept that West City is a college outside inner London and that, had the appellant applied to West City in December 2011, which he did not, then his then produced Lloyds TSB bank statement would have established a sufficiency of funding for that course at that stage. However, the fact is that the appellant did not apply to West City in December 2011; rather, he applied to Alexander, a college in Inner London.

42. In the present instance, the appellant was not admitted to the United Kingdom to follow a course which has not yet ended. Rather, he completed the course for which he was admitted to the United Kingdom and, since then, he has not been granted leave to study any course at all, even though I acknowledge that his leave to enter has been extended by virtue of section 3C of the 1971 Act.

43. I accept that the appellant has now demonstrated that he has what would appear to be ample funds available, in relation to his produced MCB statement, but the fact is that the MCB financial evidence has never been produced to the respondent until at, or shortly before, the appeal hearing itself. Thus, the respondent cannot be criticised for concluding that the requisite level of funding has not been demonstrated.

44. In all the circumstances I find that the respondent’s decision does not have consequences of sufficient gravity such as to engage Article 8 in relation to the appellant’s private life established in the United Kingdom, bearing in mind that the appellant was able to complete the course for which he was granted entry clearance. He can have had no legitimate expectation that his leave would be continued beyond that initial period; a conclusion reinforced by the fact that the appellant did not provide sufficient evidence to the respondent to justify the grant of further leave in any event.

45. I have borne in mind the findings of the Court of Appeal in its judgment in Pankina but the fact is that the appellant did not even demonstrate a sufficiency of maintenance funds for one day during the requisite 28-day period preceding his 31 December 2011 application and he did not produce any evidence to the respondent, with his variation application of August 2012, which established that he satisfied the requisite maintenance criteria even at that stage.

46. Thus, for the reasons I have given, I conclude that Article 8 is not engaged.

47. What is clear is that the respondent’s decision is in accordance with the law, in the sense that the appellant is unable to satisfy all of the requirements of the relevant Rule. The aim of that decision is clearly the maintenance of a sensible and consistent immigration control policy; a normally very weighty consideration indeed and one which I have taken fully into account in undertaking the relevant balancing exercise.

48. In terms of proportionality, I have taken into account all of the evidence and factors to which I have referred above, which include the fact that the appellant has clearly expended a significant proportion of funds in further course fees, and there is no suggestion that he is other than a genuine student. Further, it is no fault of the appellant that Alexander lost its sponsor licence. However, the fact is that the appellant at no stage had leave to undertake further studies in the United Kingdom, whether it be at Alexander or that West City, and he could never have held a legitimate expectation that his leave to remain in the United Kingdom would be further extended.

49. The appellant is 22 years old, his family remain in Pakistan, the appellant has benefited from some education in the United Kingdom and, in any event, there is no reason known to me as to what he cannot submit an application for entry clearance to the United Kingdom, or elsewhere, from Pakistan, with a view to pursuing further studies, should he elect to do so.

51. I have borne in mind the reasoning of the House of Lords in its judgment in Huang [2007] UKHL 11, and note that the Court, in that judgment, indicated that, in circumstances where an individual was unable to satisfy the requirements of a relevant Rule, Regulation or similar, it was envisaged that it would be in very few cases where the respondent’s decision relating to that individual would be deemed to involve a disproportionate interference with that individual’s rights under Article 8(2). I entirely appreciate that this is not a strict legal test but would add that the evidence before me causes me to be satisfied, based upon my analysis of the particular facts and evidence relating to this appellant, that the relevant balancing exercise should weigh in the respondent’s favour, even allowing for the fact that the appellant excites some sympathy.

51. Consequently, and for the reasons I have given, I conclude that the respondent’s decision does not involve a disproportionate interference with the appellant’s rights under Article 8(2). Thus, the appellant’s Article 8 appeal fails.”

11. At the hearing, apart from CDS (Brazil) Mr Alef referred me to Adamally and Jaferi [2012] UKUT 00414 (IAC) and OA Nigeria [2008] EWCA Civ 82. Mr Alef submitted that the judge had not undertaken the proper balancing exercise in not considering that Article 8 was engaged. The judge had not done justice to the case of CDS and had only partly quoted from it. Quite apart from the fact that the appellant had applied in time he had been granted a further 60 day period of leave. He had been studying in the meanwhile. There had been progress since he had started at level 5 and the second course was at level 6 and would lead to an MBA in business administration. The judge had taken a mistaken view of matters.

12. The appellant had made a mistake about maintenance given that the Rules had changed in April 2012.

13. The appellant had demonstrated ample resources in the overseas bank account. He had been in the United Kingdom for two and a half years and had made progress. It was accepted that the judge’s financial and other calculations were correct.

14. Mr Tarlow referred to the Home Office letter of 21 June 2012 informing the appellant of the decision to revoke the licence of Alexander College. It was not correct to say that the appellant had been given further leave to remain. All that had happened was that the Home Office had suspended consideration of his application for a 60 day period. He relied on the reply that had been filed under Rule 24. The findings made by the judge had been open to him. He had correctly referred to the case of CDS (Brazil). It was clear from paragraph 44 of the determination that the appellant had not provided sufficient evidence to the Secretary of State to justify the grant of further leave in any event. The determination was adequately reasoned in light of the previous findings.

15. In respect of the point made in relation to the refusal under Section 47 of the Immigration, Asylum and Nationality Act 2006 Mr Tarlow withdrew such a decision had it been made. In order to effect the removal of the appellant should his appeal be unsuccessful a fresh decision would be made.

16. I have carefully considered the submissions and the material and authorities to which I was referred. I can only upset the decision of the First-tier Judge if it was flawed by virtue of an error of law. The fact that I or another judge might have reached a different decision is neither here nor there.

17. The judge in my view did a very thorough analysis of the respective maintenance provisions at the different times involved in this case. It does appear absolutely unarguable and indeed it is not argued that at any stage the appellant could have fulfilled the requirements of the Rules on the material presented to the Secretary of State.

18. It is acknowledged that the appellant made a mistake about the change in the requirements of the Rules. It is perhaps worth reminding oneself that we are not dealing with someone who is untutored, illiterate or without education. We are dealing with a student who is proceeding with a course of business management. He would have the benefit of colleagues and assistance and could always ask if he needed help. It is worth while pointing out that in the letter of 21 June 2012 information is provided and it includes the information that for an application to vary to be successful “the student will need to show that he meets the requirements of the Immigration Rules which are effective on the day that he makes the application to vary. [My emphasis] The latest version of the Immigration Rules are available on our website …” and then particulars are given of the website.

19. There are limits to what can be done to help an appellant particularly when that appellant is an educated adult pursuing a course in business management.

20. The circumstances in CDS were somewhat different. In the Secretary of State’s Rule 24 response it was submitted that the appellant’s case could be distinguished from CDS. In that the case the Tribunal found that the appellant had sufficient funds available under the Immigration Rules and so recourse to Article 8 was not necessary for the Tribunal’s decision. In this case there is no question of the appellant meeting the requirements of the Rules. In CDS the Secretary of State had relied on the guidance rather than the Rules which was no longer possible after Pankina. In paragraph 21 of the decision the Tribunal refers to the “somewhat arbitrary provisions of guidance attached to an appendix to the Rules”. This was in the Tribunal’s judgment somewhat less than a failure to meet a central requirement of the Rules. It is now the position that all the points relied on by the Secretary of State were in the Rules and it is acknowledged that the appellant fails under the Rules.

21. Mr Alef places central emphasis on the point that the judge did not conduct a proper balancing exercise and was wrong to find that Article 8 was not engaged.

22. In my view that is not the correct way to read the determination. Despite what he says in paragraph 46 it is plain that the judge in fact went onto consider all relevant circumstances and conducted a full balancing exercise in paragraphs 47 to 51 which I have set out above. The judge had well in mind the fact that the appellant had spent significant money, was a genuine student and that it was no fault of his that the college had lost its licence. He acknowledged that the appellant’s circumstances excited some sympathy. He plainly had all relevant considerations in mind on the appellant’s side. I do not find that the judge neglected any relevant part of the guidance in CDS. He sets out the relevant part of the head note in paragraph 37 and it is nothing to the point that he chose to highlight two parts of that head note in paragraph 38. It does not indicate that he did not have all the guidance in mind including the reference to ample financial resources. The judge indeed refers in paragraph 43 to the ample funds available.

23. In my view it was open to the judge to conclude, having found that the appellant did not meet the relevant requirements of the Rules, that the decision of the respondent was not disproportionate and to resolve the balancing exercise to which he makes reference in paragraph 50 against the appellant.

24. When the determination is read as a whole I am not satisfied that it is flawed in law for the reasons advanced. This appeal fails.

Signed Date 3 June 2013

Upper Tribunal Judge Warr