The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01010/2013


Heard at Field House
Determination Promulgated
On 9 July 2013
On 12 July 2013








For the Appellant: the appellant did not appear and was not represented
For the Respondent: Ms M Tanner a Senior Home Office Presenting Officer


1. The appellant is a citizen of Nepal who was born on 24 June 1982. He has been given permission to appeal the determination of First-Tier Tribunal Judge A Cresswell who dismissed his appeal against the respondent's decision of 21 December 2012 to refuse him leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-based System and for a Biometric Residence Permit. The respondent also made a decision to remove the appellant from the UK by way of directions under s 47 of the Immigration and Asylum and Nationality Act 2006.

2. The application was refused because the respondent did not consider that the appellant was entitled to the required points for Maintenance (Funds). The bank statements he had supplied were not for the required period or a complete set.

3. The appellant appealed and asked for his appeal to be determined on the papers which is what the judge did on 8 March 2013. The judge found that although the appellant had said that he would supply more particulars none had been submitted. The situation had not changed since the position considered by the respondent. The respondent had established the grounds for refusal. The judge dismissed the appeal on asylum and human rights grounds.

4. The appellant applied for permission to appeal which was granted by a judge in the First-Tier Tribunal. Notice the hearing before me was given to the appellant and his solicitors. The solicitors wrote to the Tribunal on 8 July 2013 stating that they would not be representing the appellant at the hearing and asking that the case be decided by way of written submissions. They enclosed a bundle containing a copy duplicate bank certificate of deduction of tax, 21 pages of copy bank statements, a copy of what may be the appellant's Nepalese identity card and a copy of the UK Visa from his passport.

5. I heard the appeal in the absence of the appellant and his representatives with brief oral submissions from Ms Tanner.

6. In paragraph 7 of the determination the judge listed the documents before him which included "(ii) the notice of appeal and documents attached that notice and received since that notice". It is clear that the judge had before him the respondent's bundle and a letter from the appellant’s solicitors dated 3 January 2013 submitting the form of appeal to the First-Tier Tribunal, the reasons for refusal letter and grounds of appeal. I cannot find on the Tribunal file any other bundle or any letter from the appellant or his solicitors indicating that a bundle of documents has been supplied.

7. The judge said that in the grounds of appeal the appellant indicated that he intended to particularise his grounds further but he had not done so.

8. In his grounds of appeal to the Upper Tribunal the appellant claims that the judge failed to give proper consideration to "the bundle of documents that were submitted by him in support of his application and in the appellant's bundle of documents (which was sent prior to the hearing). A copy of the appellant's bundle is enclosed with this appeal." The First-Tier Tribunal Judge who granted permission to appeal could not find this bundle. She said this in paragraph 4 her grant of permission. I would have expected the appellant’s solicitors to have picked up on this and to have provided the missing bundle. They have not done so. I cannot find such a bundle on the Tribunal file nor any sufficient indication that it was ever submitted. I find that the appellant has not established that it was ever submitted. It has not been said that the bundle submitted with the latest letter, of 8 July 2013, is the missing bundle which was either before the judge or submitted with the application for permission to appeal to the Upper Tribunal.

9. I must consider whether the judge erred in law. The main allegation is that he did so by failing to consider a bundle of relevant documents submitted by the appellant. The appellant has not established that such a bundle was submitted or that it was before the judge. It is not clear what the bundle contained or whether this would have made any difference. If, which has not been claimed, the missing bundle contained the same copy bank statements as those in the bundle which accompanied the solicitors letter of 8 July 2013, then the appellant has not established that these were ever before the respondent or the judge. I have studied these bank statements and they do not show that the appellant was in possession of the required £1600 for the required consecutive 28 day period to meet the requirements set out in paragraph 1A of Appendix C of the Immigration Rules. The bank statements show no consecutive 28 day period prior to the date of application during which the balance at all times amounted to or exceeded £1600. In these circumstances the appellant has not shown that even if the respondent had exercised any evidential flexibility policy it would have made any difference.

10. I cannot see any basis on which the appeal could have succeeded on Article 8 human rights grounds on the evidence before the judge.

11. I find that the judge did not err in law and I uphold his determination.

Signed Date 10 July 2013
Upper Tribunal Judge Moulden