IA/01504/2012

• Status of case: Unreported
• Promulgation date: 14 Jun 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01504/2012

THE IMMIGRATION ACTS


Heard at Bradford
Determination Promulgated
On 30 May 2013
On 13 June 2013




Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

kin yan choi
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Miss E Rutherford, instructed by Lin & Co Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer


DETERMINATION AND REASONS

1. The appellant, Kin Yan Choi, was born on 26 January 1977 and is a British Overseas National (Hong Kong). She was initially granted leave to enter the United Kingdom as a visitor in July 2003. She had subsequently applied for further leave to remain as a Tier 4 (General) Student Migrant. A decision dated 17 January 2011 (refusing her application due to the absence of a Certificate of Acceptance for Studies (CAS)) was withdrawn but the appellant’s application was refused again on 20 December 2011. The appellant’s application was refused under Appendix C of the Immigration Rules in respect of maintenance (funds). The documents which she had provided had not demonstrated that she had been in possession of £1,200 for a 28 day period from 11 September – 8 October 2010. The appellant has sought to rely on money held by her mother but she had not provided any evidence of that claimed relationship. Her appeal to the First-tier Tribunal (Judge Shimmin) had been dismissed in a determination promulgated on 6 March 2012.
2. Miss Rutherford, for the appellant, candidly admitted at the opening of the Upper Tribunal hearing that the grounds of appeal raising issues similar to those addressed by the Upper Tribunal in Ejifugha (Tier funds – credit) Nigeria [2011] UKUT 244 (IAC) were not relevant; the rules to which covered the present appellant’s application had been subject differed from those considered in Ejifugha and Miss Rutherford accepted that the appellant could not succeed because she had been unable to show the First-tier Tribunal that she had in her possession the funds required for a consecutive 28 day period.
3. Miss Rutherford went on to raise an issue which, although not in the grounds, she submitted was of particular importance in this instance. She submitted that the Decision Maker had failed to apply the “evidential flexibility policy” of the respondent in force at the time of the decision. Although she could not produce a copy of that policy, Mr Diwnycz, for the respondent, accepted that a flexibility policy had been in force at the time of the appellant’s application. He did not object to the matter being raised notwithstanding that it had not been referred to in the grounds. Miss Rutherford relied on the case of Rodriguez (flexibility policy) [2013] UKUT 00042 (IAC). It is a common feature of the flexibility policies which had been in force for some time that they give caseworkers a discretion to request additional information or documents from applicants when they have “sufficient reason to believe” that such evidence is in existence and when its production may lead to further leave to remain being granted. In the present appeal, Miss Rutherford submitted that evidence which would have proved the relationship of mother and daughter between the appellant and Ms Suk Ching Keung was highly likely to exist and could have been requested by the Decision Maker.
4. I consider that this is an instance when the Decision Maker should, at the very least, have considered requesting further evidence from the appellant under the respondent’s policy of evidential flexibility. Even if the Decision Maker had resolved not to request further evidence, his/her decision should have recorded the fact that the application of the policy had been considered and brief reasons given for not applying it. Mr Diwnycz told me that he did not disagree with the submissions of Miss Rutherford. He agreed with her that the appeal should be allowed to the limited extent that the matter should be referred again to the Secretary of State to consider the application of her flexibility policy and to remake the decision in accordance with the law.

DECISION
5. This appeal is allowed to the limited extent that the matter is remitted to the Secretary of State to make a lawful decision having due regard to the application of her evidential flexibility policy.


Signed Date 2 June 2013
Upper Tribunal Judge Clive Lane