The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01051/2013


Heard at : Field House
Determination Promulgated
On : 8th July 2013
On : 10th July 2013


Upper Tribunal Judge McKee


secretary of state for the home department





For the Appellant: Mr Chris Avery of the Specialist Appeals Team
For the Respondent: Mr Ishmael Kumi of Cromwell-Kumi Chambers


1. In January 2010 Mr Keou arrived in the United Kingdom with entry clearance as a Tier 4 Migrant. He has been studying here ever since, and before the expiry date of his most recent period of leave on 15th November 2012 he applied on 28th September 2012 for further leave to remain in order to study at the University of East London for a BA in Accountancy and Finance. The application was refused on 27th December 2012 because, although Mr Keou had paid in full the course fees of £9,900 for his first year at the university, he was unable to show maintenance funds of £2,000 for a continuous period of 28 days, ending on 26th September 2012. Between 5th and 9th September the credit balance in his mother’s account with the Union Bank of Cameroon was only the equivalent of £104.97 (caused by the withdrawal on 5th September of CFA francs 3,600,000, although this was followed on 9th September by a deposit of CFA francs 7,000,000 ~ a sum equivalent to well over £9,000).

2. Because Mr Keou had not scored 10 points for Maintenance under Appendix C to the Immigration Rules, he was refused further leave to remain, and at the same time a decision was made to remove him under section 47 of the Immigration, Asylum and Nationality Act 2006. Notice of appeal was sent to the First-tier Tribunal with professionally drafted grounds, although no representative was named on the notice. In one of the grounds it is asserted that, while the Border Agency considered the bank statement from Mr Keou’s parents, no consideration was given to the bank statements in his own name which Mr Keou also submitted, and which covered the same period. It does not seem, however, that any other bank statements were submitted with the application, and this was indeed acknowledged by Mr Kumi when he appeared before Judge Nicholas Bennett on 10th April 2013.

3. Instead, a statement of Mr Keou’s account with HSBC was produced for the First-tier hearing, and this showed that during the 28-day period for which Mr Keou needed to demonstrate funds of £2,000 for the purposes of his application, he had between £1,300 and £2,300 in his own account. Between 5th and 7th September, when his mother’s account had dropped to just over £100, he had £1,300 in his HSBC account, so the total still did not reach the £2,000 needed. Pay slips were also proffered, showing that Mr Keou earned £866 in August 2012 as a security guard, and £750 in September. That was not the same, of course, as having money in the bank, and the upshot was that Mr Keou could not show funds in his own and his mother’s accounts totalling £2,000 for three days out of the 28 needed.

4. Mr Kumi very sensibly conceded at the First-tier hearing that the appeal could not succeed under the Rules, and relied instead on Article 8. Having first explained that Mr Keou did not fall within the Article 8 provisions of paragraph 276ADE, Judge Bennett turned to Article 8 more generally, and observed that the relatively short period during which Mr Keou’s funds fell below the £2,000 threshold was not a sufficient reason for finding that removal would be disproportionate. There was no “near miss” principle, and in this instance the shortfall was significant.

5. Nevertheless, Judge Bennett was satisfied that removal would be disproportionate, because it would prevent Mr Keou from completing his studies. He had paid £9,900 in course fees, and had invested time in his studies. Although his attendance record at the university had not been good during the early part of the first term, there had only been a few absences since the end of October. It was clear from the healthy balances in his bank account that he had no trouble meeting his living expenses. The appeal was allowed under Article 8, and Judge Bennett also directed that Mr Keou should be granted leave to remain as a student until 30th June 2015, the end of his course at the University of East London.

6. Permission to appeal to the Upper Tribunal was sought on the ground that “it is crystal clear that the judge is relying on the near miss argument rejected by the Court of Appeal in Miah & Others [2012] EWCA Civ 261.” It was also contended that the judge’s direction for a grant of leave to remain was irrational. Permission was granted by Judge Astle on the strength of these grounds, and when the appeal came before me today I heard detailed submissions from Mr Avery and Mr Kumi, the latter adducing a skeleton argument and four authorities. In the upshot, however, the Secretary of State’s principal challenge can be dismissed in short order. It is crystal clear that Judge Bennett did not rely on a near-miss argument. He expressly disavowed such reliance at paragraph 22 of his determination. The appeal was allowed for quite different reasons, which I have summarised above. Those reasons were not challenged in the grounds of appeal, and in the absence of any further written submissions or skeleton argument from the Secretary of State, the effect of the Directions sent on 7th June is that the appellant is taken to be “relying solely on the grounds for seeking permission to appeal.” Although Mr Avery observed, quite rightly, than an Article 8 claim rarely succeeds just on private life, it cannot be said that the judge’s reasons are obviously perverse or irrational, such that I should set the First-tier decision aside despite the absence of a specific challenge in the grounds. Judge Bennett’s decision to allow the appeal against the refusal to vary Mr Keou’s leave therefore stands.

7. On the other hand, both Mr Avery and Mr Kumi agreed with me that it was not appropriate (a preferable epithet to “irrational”) for Judge Bennett to direct that leave to remain be granted for a specific period. It is not usually necessary to give such a direction at all, but especially when an appeal has been allowed under Article 8. Leave is then granted outside the Immigration Rules, on a discretionary basis. The Secretary of State can exercise her discretion unaided, although in the present case it may well be sensible for her to grant leave for the remainder of Mr Keou’s course, as Judge Bennett wished her to do.

8. Both representatives were also agreed upon an issue which had not hitherto been raised, namely that the decision to remove Mr Keou was unlawful : see Ahmadi [2013] EWCA Civ 512. Section 47 of the 2006 Act has been substituted from 8th May 2013 with provisions for the simultaneous service of a “pre-removal decision” and a removal decision. But prior to that date, such a procedure was unlawful.


The Secretary of State’s appeal, in respect of variation of the respondent’s leave, is dismissed.

The direction by the First-tier Tribunal for the grant of leave to remain is set aside.

The Secretary of State’s decision to remove the respondent under section 47 of the Immigration, Asylum and Nationality Act 2006 was not in accordance with the law.

Richard McKee
Judge of the Upper Tribunal
9th July 2013