Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02231/2013

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 8th July 2013
On : 11th July 2013

Before

Upper Tribunal Judge McKee

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

IYNGARAN SELLATHURAI

Respondent

Representation:

For the Appellant: Mr Chris Avery of the Specialist Appeals Team
For the Respondent: Mr Mohammed Akram Rana, instructed by Nathan & Co.

DETERMINATION AND REASONS

1. On 16th February 2010 Iyngaran, son of Sellathurai, arrived in the United Kingdom with entry clearance as a Tier 4 Migrant. Two days before his leave was due to expire on 27th May 2012, he applied for leave to remain in order to study for a ‘level 5’ diploma at the London College of Social and Management Sciences. Accompanying the application was a statement of Mr Sellathurai’s account with Santander, which showed a credit balance of £1,491.58 on 24th April 2012, rising on 10th May to £1,741.58 and eventually climbing to £2,011.58. The application was not determined until 3rd January 2013, when it was pointed out that, in order to score 10 points for Maintenance under Appendix C to the Immigration Rules, Mr Sellathurai needed to have kept a credit balance of at least £1,600 in his bank account during the 28-day period from 24th April to 21st May 2012. But for the first sixteen days of that period, the credit balance in the Santander account fell short of that figure. Mr Sellathurai had also included with his application a letter dated 25th May from his uncle in Sutton, Murugesu Velananthan, offering financial support and attaching a summary of his Barclays Premier account, showing that in the thirty days up to 8th May 2012 there had been at least £3,078.20 in that account. Those funds could not be used to top up Mr Sellathurai’s own funds, however, since paragraph 13 of Appendix C restricted the source of funds to the applicant himself, his parent or legal guardian, and an ‘official’ sponsor, such as a government or an international organisation. An uncle could not act as a financial sponsor.

2. The application to vary leave was refused on ‘Maintenance’ grounds only, and at the same time a decision was taken to remove Mr Sellathurai. Nathan & Co. gave notice of appeal to the First-tier Tribunal, enclosing a letter of 12th January 2013 from Mr Sellathurai’s parents in Point Pedro, transcribed below:

“We are the parents of Iyngaran and we support our son education in the United Kingdom. The some (sic) of [blank] is available for use and his request. We will forward the money to him. We enclose a copy this birth certificate.”

3. There was also enclosed a print-out of the transactions in the parent’s bank account for the one-year period ending on 15th December 2009. The print-out was stamped and signed, presumably by a bank official, on 10th January 2010. In the notice of appeal itself, Mr Sellathurai says, “I enclose a letter from my parent’s (sic) bank which shows that I have the required money for the required period.” As the period covered by the enclosure ended more than two years before the “required” period of April-May 2012, that was a rather optimistic assertion. The actual ground of appeal was;

“The decision is not in accordance with the law as I was not given an opportunity to provide further evidence to show that I had the required funds, as required by UKBA policy.”

4. This ground was expanded when Nathan & Co. received notice of the hearing before the First-tier Tribunal on 19th April 2013. It was said in Amended Grounds of Appeal that the Secretary of State had failed to apply her policy of ‘Evidential Flexibility’, under which she should have contacted Mr Sellathurai before deciding his application and told him that his uncle could not be used as a sponsor, but that funds in his parents’ bank account would be acceptable. In a statement signed on 16th April 2013, Mr Sellathurai says that he is now attaching “evidence to show for the period of 31st April (sic) 2012 that my parents had a sum of 91,066.99 Rupees in credit balance and on 31st May 2012 that my parents had a sum of 81,351.16 (equivalent to £422.79) in their bank account, which would have meant that I satisfied the immigration rules.” A photocopy of savings bank transactions has been included in the Appellant’s Bundle, which one assumes is the evidence to which Mr Sellathurai refers in his statement, but it is most unsatisfactory. It does not say to whom the savings book belongs. It gives the day and the month of the transactions, but not the year. And one cannot actually discern the two figures given (Rs 91,066.99/- and 81,351.16) anywhere on the photocopy. Some of the photocopy is blurred, and it may be that those figures are hidden in that blurred area. One just cannot tell.

5. What one can tell is that, by the date of the hearing before the First-tier Tribunal, Nathan & Co. had still not provided documentary evidence to support the assertion that, during the requisite 28-day period in April/ May 2012, there were sufficient funds in his parents’ bank account to cover the shortfall in Mr Sellathurai’s own account. This does not appear to have been noticed by the representatives at that hearing, or by Judge Wiseman, who focused on the ‘PBS Process Instruction – Evidential Flexibility’ which was put before him. This advises UKBA caseworkers that they can “go out for additional information in certain circumstances which would lead to the approval of the application.” But they “must have established that evidence exists, or have sufficient information to believe the information exists.” An example of this would be where there was a series of bank statements, and some were missing. Judge Wiseman accepted that the proffering of an inadmissible financial sponsor was not quite the same thing, but asked rhetorically whether this was really enough to put Mr Sellathurai’s situation completely outside the policy requirements to make a further inquiry. Was it not sufficiently likely that an appellant could well have an appropriate parental sponsor for a shortfall of just over £100?

6. Judge Wiseman then turned to Annex A of the Evidential Flexibility document, which lists examples of documents which it may be appropriate to request for each Tier. Under the heading of Maintenance for Tier 4 we find the following :

Missing bank statements from a series
Missing information from bank letters
Evidence that is copied instead of an original
Bank statements not in the desired format
Third party maintenance information missing
Missing birth certificate needed as evidence of relationship with Sponsor

7. What is being asked for in the above list is clearly secondary material. The existence of the primary material is presupposed. Most obviously, there is already a series of bank statements in existence. If that were not the case, one could not request statements missing from that series. But equally, if a sponsor had not already been proffered, there would be no need to request proof of the relationship between the applicant and the sponsor. Thus also, if a third party had not already been named as the provider of maintenance, be that a parent or an official body, there would be no need to request information about the third party’s ability to maintain the applicant. What is absent from the list is any suggestion that the caseworker should ask the applicant whether he can find a more suitable sponsor than the one whom he has named in his application. Yet Judge Wiseman regards putting forward an inappropriate sponsor as no more “blameworthy” than failing to provide enough information about an appropriate sponsor.

8. Judge Wiseman goes on to observe that there was plenty of time to contact the applicant in the seven months which it took the Border Agency to decide Mr Sellathurai’s application, which made it all the more appropriate and practical to put into effect what the policy document says about contacting customers “to correct minor errors or omissions in their applications.” In a case where the shortfall in funds was so small, there was “every reason to imagine that there could well be an appropriate sponsor for such a small sum.”

9. The appeal was allowed to the extent of “remitting the matter back to the respondent for fresh consideration.” It had been conceded at the hearing that the removal decision was unlawful, but Judge Wiseman made no separate decision on that. The Secretary of State sought permission to appeal to the Upper Tribunal, which was granted by Judge Grimmett. When the matter came before me, Mr Rana strove valiantly to persuade me that Judge Wiseman made no error of law in “remitting the matter” to the Secretary of State. But he clearly did. He does not actually state the ground on which the appeal was being allowed. He mentions “the reintroduction of discretion” into the Points Based System, so was it the ground given by s.84(1)(f) of the 2002 Act, that a discretion conferred by immigration rules should have been exercised differently? Or was it the ground in s.84(1)(e), that the decision was not in accordance with the law? This uncertainty is itself an error of law.

10. Mr Avery contended that the judge had misunderstood the ambit of the Evidential Flexibility policy, and despite the best efforts of Mr Rana, I have to agree. Putting up an impermissible sponsor is not “a minor omission or error.” To use the expressions I adopted in paragraph 7 above, an applicant’s choice of sponsor is a primary matter. The policy is concerned with secondary matters, i.e. the absence of certain information needed to substantiate the primary matter that has already been chosen. Thus, if a third party has been put forward as the provider of maintenance, but there is not enough evidence to show that maintenance can actually be provided, the caseworker might ask for that evidence. But the caseworker is not expected to assist the applicant in getting his application right, to the extent of correcting primary matters, such as the selection of a college, or of a financial sponsor.

11. It is not actually necessary for me to decide today what exactly the scope of the policy is, because on the facts of the present case Mr Sellathurai’s application would have been rejected even if a caseworker had contacted him and told him that his uncle could not be his financial sponsor. When Mr Sellathurai’s parents were contacted in January this year, after the application had been refused, the evidence which they sent to show that they could have covered the shortfall in their son’s funds was for the wrong year altogether, while in their covering letter they did not specify how much of their own funds would have been available for their son. In April this year further evidence was supposedly sent from Sri Lanka to prove that Mr Sellathurai’s parents had adequate funds at the requisite time, but again the document adduced does not prove that at all. There is no reason to suppose that Mr Sellathurai would have been any more successful in obtaining the requisite evidence if he had asked his parents for it last year.

12. There is no need for me to reach a concluded view on another issue which came up at the hearing, namely the relationship between the guidance to caseworkers contained in what I have been calling the policy document, and ‘evidential flexibility’ introduced into the Immigration Rules as paragraph 245AA on 6th September 2012, and amended on 13th December 2012. The decision in the instant case was taken on 3rd January 2013, when the rule was in force. The rule limits the ambit of flexibility to asking that the defects be remedied when there are documents missing from a series, documents in the wrong format, or documents which are copies rather than originals. Mr Rana suggested that the letter from Mr Sellathurai’s uncle could be “a document in the wrong format” under rule 245AA(b)(ii), but that is to misunderstand what ‘format’ means.

13. The upshot of all this is that the determination of the First-tier Tribunal has to be set aside as erroneous in law, and the decision on the appeal has to be re-made by the Upper Tribunal. The refusal of the Secretary of State to vary Mr Sellathurai’s leave was in accordance with the Immigration Rules, and did not involve the misapplication of a policy outside the Rules. On the other hand, however, the decision to remove Mr Sellathurai was unlawful. It may be that, before the Secretary of State takes any further decision, Mr Sellathurai can provide her with information about his current studies and his ability to satisfy the Maintenance requirements of Appendix C, with a view to obtaining further leave to remain as a student, albeit on a discretionary basis.

DECISION

The Secretary of State’s appeal is allowed, in respect of the refusal to vary the respondent’s leave.

The decision to remove the respondent under section 47 of the Immigration, Asylum and Nationality Act 2006 is not in accordance with the law.

Richard McKee
Judge of the Upper Tribunal
9th July 2013