Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/28235/2012
IA/28236/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 May 2013
On 5 June 2013
Prepared 14 May 2013

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

mrs gauri rai
mr dinesh khadka
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr A Rahman, Solicitor, of Mayfair Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellants are both citizens of Nepal. The first appellant was born on 28 June 1979. The second appellant, who is her husband and dependant, was born on 7 September 1984.
2. The first appellant entered the UK as a student on 8 August 2009, with leave to remain until 30 April 2012. The second appellant entered later as her dependant, with leave to remain until the same date.
3. Before the expiry of that leave, the appellants applied for further leave to remain. The first appellant applied to remain as a Tier 4 (General) Student and the second appellant as her dependant spouse.
4. The applications were refused by the respondent, in a decision dated 13 November 2012. The refusal letters are dated the same date. The respondent also made a decision to remove the appellants by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
5. The sole reason for refusal was that it was considered that the maintenance requirements under the Rules had not been satisfied. It is common ground that in addition to the course fees (which had been paid) the appellants had to show between them that they had £2,500, being £800 for two months for the first appellant and £450 per month for two months for her dependant partner, the second appellant. Under the Rules, the appellants had to show that they had this sum for a 28 day period in approved bank account or accounts ending on a day not more than 31 days before the date of application. In the refusal letter, the respondent stated that the bank account submitted by the appellants only showed that they had been in possession of £1,946.97 during that period.
6. The appellants appealed against this decision and requested that their appeals be dealt with on the papers, which they were. The appeal came before First-tier Tribunal Judge P J Clarke, sitting at Birmingham on 21 February 2013, but in a determination prepared on 25 February 2013 and promulgated on 28 February 2013, Judge Clarke dismissed their substantive appeals, although he did find that the removal decision under Section 47 was not in accordance with the law.
7. The appellants now appeal against the substantive decision, permission having been granted.
8. The grounds raise a number of matters, but for reasons which are discussed below, it is not necessary to refer to these within this determination.
9. At the outset of the hearing before me, I expressed my preliminary view that this appeal should be allowed for reasons which I now set out. In the course of his determination, Judge Clarke had found at paragraph 16 that the evidence of funds in the first appellant’s Barclays Bank account only showed statements up to 22 March 2012, which was more than 31 days before the date of application. In fact, Judge Clarke overlooked one page of these statements, which went up to 29 March 2012, which was within the 31 day period stipulated within the Rules. Judge Clarke also considered that the lowest balance within the 28 day period was £1,473.07 on 23 February 2012 (at paragraph 9). He found also that the second appellant’s bank account with Everest Bank Limited had at the relevant times a positive balance of sums equivalent to £801.42.
10. In fact, throughout the 28 day period up to 29 March 2012, the first appellant’s Barclays Bank account never had less than £1,732.19 in it, so that throughout the relevant period, the appellants in fact never had below £2,500 in their combined bank accounts. It follows that the maintenance requirements had in fact been met, and that Judge Clarke’s failure to take account of the page of the statement from 22 March to 29 March 2012 showing the sums in the account during this period was a material error of law, such that this determination must be set aside and re-made by the Upper Tribunal.
11. On behalf of the respondent, although Ms Holmes could not formally concede the appeal, she acknowledged that there was no basis upon which she could properly assert that the appeal should be dismissed. She accepted that Judge Clarke had not taken proper account of the appellants’ bank accounts and that had he done so, he would have found that the maintenance requirements had been satisfied.
12. I accordingly find that Judge Clarke’s determination contained a material error of law such that his decision must be re-made, and I shall allow the appeals.

Decision
I set aside the determination of the First-tier Tribunal as containing a material error of law and substitute the following decision:
The appellants’ appeals are allowed, under the Immigration Rules.

Signed: Dated: 4 June 2013

Upper Tribunal Judge Craig