Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27693/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 30 May 2013
On 4 June 2013
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

AYESHA LAKMINI HARISCHANDRA

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M I Hussain, Legal Representative
For the Respondent: Ms Tanner, Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Sri Lanka born on 3 August 1985. She appeals with permission against the decision of First-tier Tribunal Judge Manuel promulgated on 20 March 2013, refusing the appellant's appeal against a decision of the respondent made on 9 January 2013 to refuse her leave to enter.
2. The appellant entered the United Kingdom on 5 June 2010 with leave to remain as a student until 31 May 2012. On 5 April 2012 she posted an application for further leave to remain in order to complete her studies. That application was refused on 13 November 2012 on the basis that the necessary funds fell below the £2,000 required by Appendix C of the Immigration Rules. In grounds of appeal the appellant submitted that the date of application should be the date of posting and that the Rules in force at the date required the appellant to show that she had £1,600 available not £2,000; and, that she had met that requirement.
3. The matter then came before Judge Manuel sitting in Manchester who found that the date of application was the date it was received by the respondent, 12 April 2012; that the appropriate level of funds was accordingly £2,000; and, that as the appellant's bank statements showed that she had less than that amount the appeal was dismissed.
4. The respondent sought permission to appeal on the grounds that the First-tier Tribunal Judge had erred firstly in finding that the date of application was not the date of sending but the date it was received, contrary to Rule 34Gof the Immigration Rules and second, that the judge had failed to follow the relevant case law. Permission to appeal was granted by First-tier Tribunal Judge on all grounds.
5. It was accepted before me by Ms Tanner that the judge had erred in that the appropriate date for the date of application was 5 April 2013 but as Ms Tanner helpfully pointed out, this was not a relevant factor given that the amendment to the Immigration Rules increasing the relevant amount of money that has to be held by a Tier 4 student had been increased by HC1888 with effect from 14th June 2012. She accepted that there were transitional arrangements in place under HC 1888 whereby an application made before 14 June 2012 was to be decided in accordance with the Rules in force on 13 June 2012. As Ms Tanner very fairly accepted, the appellant did in fact meet the requirements of the Immigration Rules applicable to her given that her application had been made prior to 13 June on that basis.
6. I am satisfied that the determination of the First-tier Tribunal did involve the making of an error of law as the judge did not apply the immigration rules which define the date of application correctly. This led to an error in her applying the incorrect version of the immigration rules. This clearly affected the outcome and was a m aterial error, requiring the determination to be set aside.
7. I set the determination aside and I remake it by allowing the appeal under the Immigration Rules given that as the appellant benefited from the transitional provisions set out in HC1888, she did in fact, as Ms Tanner accepted, have the required funds for the correct period. In the circumstances there is therefore no need for me to consider whether the appeal is allowable on any other grounds.
Summary of Decision
1. The determination of the First-tier Tribunal is set aside. I remake the determination by allowing the appeal under the immigration rules.

Signed Date: 3 June 2013

Upper Tribunal Judge Rintoul

Note: this does not form part of the determination.

TO THE RESPONDENT
FEE AWARD

I have allowed the appeal on the basis that the respondent did not apply the immigration rules correctly. It follows that the appellant should not have been put to the trouble of making an appeal, and I consider that it is appropriate to make a full fee award in favour of the appellant

Signed Date 3 June 2013

Upper Tribunal Judge Rintoul