Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/49833/2013
IA/49832/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 May 2014
On 24 July 2014

Before

MR JUSTICE GREEN
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE GLEESON

Between

Miss Osadebamwen Gift Ugiagbe
Mr Chukwunnaka Onuoha
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mrs C Chile
For the Respondent: Ms Alice Holmes

DETERMINATION AND REASONS

1. This is an appeal against the decision of the First-tier Tribunal of 13 March 2014 in which on paper the First-tier Tribunal dismissed the appeal of the appellants against the decision of the Secretary of State refusing the appellants’ leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system and for a biometric residence permit.
2. The decision of the Secretary of State was taken on 13 November 2013. There are two appeals before us today. They are conditional in the sense that they stand or fall together.
3. We will start with Miss Ugiagbe’s appeal and then deal with Mr Onuoha’s appeal.
4. The issue arising on the first appeal is a narrow one. We deal with it briefly. In her decision the Secretary of State found that the appellant failed to meet the maintenance requirements. This decision was arrived at upon the basis of an analysis of the applicant’s sponsor’s bank accounts. It ignored the appellant’s own accounts.
5. Two points need to be made at this stage about this finding. First, in the application form completed by the appellant there is in fact a reference to her own bank accounts but there was no analysis of this in the Secretary of State’s decision. Secondly, a recent Rule 24 letter from the Secretary of State dated 8 May 2014 confirms this position. The letter states in paragraph 3:
“The respondent has investigated the CID Home Office computer system and notes that the consideration of funds appears to have been limited to the sponsor’s accounts. No reference is made to the appellant’s accounts. However, the PF1 document does include in the list of documents applicant’s bank statements.”
Unfortunately the file is not to hand and it is not possible to clarify what documents are on it.
6. The Tribunal’s determination operates upon the basis that the bank statements presented with the application form were only from the appellant’s sponsor. Paragraph 13 of the determination states:
“The bank statements presented with the application form were from the first appellant’s sponsor. The first appellant has presented with her notice of appeal her own bank statements which cover the required period (10 August 2013 to 6 September 2013). In Alam and Others v Secretary of State for the Home Department [2012] EWCA Civ 960 it was held that in appeals against the refusal of applications under the Tier 4 points-based system the exclusion of new evidence introduced by the Nationality, Immigration and Asylum Act 2002 Section 85A applied to all appeals made after the date that Section 85A was brought into force. It was also held that there was no unfairness in the requirement that an applicant must submit all the evidence necessary to demonstrate compliance with the Rules. The Immigration Rules and the policy guidance made it clear that the production of specified documents with the application is mandatory. It is clear that an applicant cannot remedy a failure to produce specified documents by producing them at the appeal stage. In this appeal the bank statements provided by the first appellant with the application did not establish that she held the necessary funds throughout the relevant period.”
7. It is clear in our view that the Tribunal erred. The Secretary of State did have the appellant’s statements before her when the decision was taken. She erred in failing to have regard to them. The Tribunal erred also in concluding that they were not before the Secretary of State.
8. We would observe that this was a paper appeal and the Secretary of State notwithstanding having been served with the appeal papers took no part in it. Had she done so she would no doubt have confirmed the position that has now been confirmed, namely that the statements were before the Secretary of State. If that had been made clear the risk of the First-tier Tribunal making this error would, we trust, have been eliminated.
9. We allow the appeal and we set aside the Tribunal’s decision. We allow the appeal against the Secretary of State and we direct that the Secretary of State grant leave to the appellant.
10. We turn now to the appeal of Mr Onuoha. His appeal is contingent upon that of the first appellant as she is his partner. The second appellant arrived in the United Kingdom in November 2008 with a one year student visa covering the period September 2008 to September 2009 to study a three year electrical engineering degree course. His visa was then extended until 2011 to enable him to complete his course.
11. On 14 November 2011, prior to the expiry of his visa, he applied for leave to remain as a dependant of a Tier 4 Migrant. By virtue of various appeals his status changed so that he was granted leave to remain in line with his partner’s visa and this gave him right to remain until 7 October 2013.
12. On 1 October 2013 he applied for leave to remain as a Tier 4 Student. This was refused upon the basis that his partner did not meet the requirements in the Rules. It therefore necessarily follows from the fact that we have allowed the first appeal that we allow the second appeal, and we make the same ruling in relation to the second appeal as we have made in relation to the first appeal.

Signed Date

Mr Justice Green