HM v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The appellants are nationals of Malawi. The first appellant is married to the second appellant and the third appellant is their son.

The first appellant entered the United Kingdom on 6 May 2005 with entry clearance as a working holidaymaker. Her leave was subsequently varied and extended permitting her to remain as a student, the last period of leave being granted on 27 June 2008 until 30 June 2009. The second appellant arrived in the United Kingdom on 25 September 2001 and was given leave to enter until 21 October 2002 as a student. That leave was extended on a number of occasions the most recent extension being until 21 March 2007. He and the first appellant married on 8 October 2006 in Malawi, and on 25 April 2007 the second appellant’s leave was varied and extended until 30 June 2008 as the spouse of a student, and that leave was again extended until 30 June 2009 on the same terms. The third appellant was born in the United Kingdom on 8 April and was granted leave to remain in the United Kingdom from 27 September 2008 until 30 June 2009 as the child of a student

On 29 June 2009 all three appellants applied for further leave to remain, the first appellant for leave to remain as a Tier 4 (General) Student and the second and third appellants applying for leave to remain as respectively her spouse and her dependent child. The first appellant proposed to study for a BA (Honours) degree in business management at the Lighthouse Business College in Manchester, the course to commence on 1 September 2008 and end on the 31 August 2010. The course fees were £4,000 of which she had paid £500 and she had £1,200 towards the cost of her maintenance for a two month period.

In a covering letter together with her application form the first appellant said that in around October 2008 she had returned to the United Kingdom from a visit to Malawi at which time she had US$9,600 and £650 to provide for her and for the other appellants’ maintenance until June 2009. She said: “At the moment we have an extremely [sic] shortage of foreign currency in my country, so its not been possible to send any amount more than $1,000 as a result, we have been asking those that wished to send money to Malawi to give us here and have the money given to them or their relatives back home in our local currency”. She also submitted a letter from a Dr R J Gombwa under the letterhead of the Chitawira Private Hospital in which he said he was willing to continue his financial support for the first appellant and her family while she was studying in the United Kingdom. Statements of the account of the hospital were submitted.

The application was refused on 10 August 2009 on the basis that the Secretary of State was not satisfied that the first appellant qualified for 10 points under Appendix C of HC 395 and noted that there was a gap of more than a month between the date on which the first appellant’s current leave had expired (30 June 2009) and the date on which the course at the Lighthouse Business College, Manchester began (1 September 2009). With regard to the former, it was considered the that first appellant had to show that she had access to funds totalling £6,300 made up of her outstanding course fees of £3,500, her own maintenance for two months at £600 a month and the maintenance of the second and third appellants for a period of two months at £400 per month for each of them. The bank statements she had produced showed only £3,269.97, and the letter from Dr Gombwa did not assist, because the published Guidance permitted “third party” support only in specified circumstances, none of which applied.

The appellants appealed against this decision, and the appeal was heard by an Immigration Judge in January 2010. The judge dismissed the appeal, agreeing with the Secretary of State's decisions in each case and also dismissing an appeal under Article 8. He noted evidence produced to him from the Chitawira Hospital and also evidence of an account in the joint names of the first and second appellants covering the period 4 June to 17 August 2009 showing a credit balance on 20 June 2009 of the equivalent of nearly £35,000. The appellants said that they had applied for permission to cover the transfer of funds from their account with the National Bank of Malawi to the United Kingdom but had only been granted permission to transfer a total of US$1,000. They had been able to obtain sterling in the United Kingdom by making arrangements with individuals who wished to remit funds to Malawi and who would give them the funds in sterling and the appellants had then transferred funds from their account in Malawi to the intended beneficiaries. They had no documentary evidence to attest to these transfers. They were obliged to effect these transfers because there was a lack of foreign exchange in Malawi. The Immigration Judge was of the view, in respect of the requirement of paragraph 11 of table C of HC 395, that funds in sterling had to be available and the same requirement existed in Appendix E. He did not consider that it was possible to equate the having of funds in Malawi with them being available to the individual concerned in the United Kingdom. The evidence did not show that on 23 June 2009 (since the date of application was 29 June 2009, we think he must, or should, have meant that date) there was on that particular day a sufficient demand by people wishing to send funds to Malawi to show that on that day the appellants could have obtained in sterling the sums required. They had not received such sums in sterling bearing that date as the credit balances on their accounts showed, and the subsequent history of payments out of the account of the National Bank of Malawi did not show that they had then received sums of that order and magnitude on that day.

As regards the other issue, he considered that the requirements of paragraph 245ZX of HC 395 were fulfilled on his interpretation of section 3C of the Immigration Act 1971.

The appellants sought permission to appeal to the Upper Tribunal, arguing that they had no notice of the amounts referred to having to be shown for the purposes of the appeal, but the Immigration Judge had relied upon factors which had not been relied on by the Secretary of State. Permission to appeal was granted on the basis that it was appropriate for the Tribunal to consider the distinction drawn by the judge between having funds and having funds available and also to consider whether the judge was correct in his interpretation of the requirement that not more than a month should lapse between the end of an applicant’s current leave and the beginning of the course on which he or she had enrolled.

The hearing before us took place on 23 July 2010. Mr S Karim, instructed by Zaidi Solicitors, appeared on behalf of the appellant. Mr C Avery appeared on behalf of the Secretary of State.

We consider first the issue of the availability of funds. The first appellant in order to succeed requires to qualify for 10 points under Appendix C of HC 395. There it is stated at paragraph 11 that 10 points will only be awarded if the funds shown in the table below are available to the applicant and the applicant provides the specified documents to show this. The Secretary of State's calculation was that the appellant needed to show over £6,700 for herself and the second and third appellants, although the Immigration Judge’s calculation was that a total of £11,900 needed to be shown. That difference is irrelevant if it is possible to take into account the sums of money in the National Bank of Malawi account in the joint names of the first and second appellants which on the date of application, 29 June 2009, (or at least on the closest date of 20 June 2009) shows the equivalent of £34,901.89. The Immigration Judge took account of what was said in the policy guidance which contained certain requirements respecting “money needed”. It is however clear from the decision of the Court of Appeal in Pankina v SSHD [2010] EWCA Civ 719 that policy guidance which has not been laid before Parliament before the inception of the points based system cannot be relied on by the Secretary of State as a source of additional mandatory requirements not otherwise spelled out in the Immigration Rules themselves. Accordingly the reliance on the guidance by the Immigration Judge in this case was an error of law.

It is necessary therefore to look at the wording of the relevant Immigration Rule to see whether the appellants can satisfy that requirement. Paragraph 11 of Appendix C states in part as follows:

We see no reason why we should not conclude that a person who has funds under his control in an overseas bank account has those funds available to him for the purposes of the Immigration Rules. Certainly the restriction on which the Immigration Judge concentrated of there being shown to be on the relevant date people who would transfer funds to the appellants in the way in which they have been carrying out these transactions must fall away in light of his reliance in that regard on the policy. There is no similar restriction on the meaning of the word “available” at paragraph 11 of Appendix C. Clearly the appellants had the ability to circumvent the Malawian exchange control regulations in the manner in which they said they did, but it does not seem to us that we can apply a limitation on the general meaning of the word “available” in some such way as stating the funds were not available because they could not immediately access them due to Malawi exchange control regulations. We are satisfied that on a proper interpretation of the word “available” at paragraph 11 of Appendix C, the necessary funds were available to the appellants.

Further or in the alternative, we do not consider that the appellants are precluded from relying upon the guidance which, though as Pankina makes clear, cannot be employed adversely to an appellant, nevertheless in our view can give rise to a legitimate expectation that the Secretary of State will adhere to that guidance when considering an appellant’s claim. As is pointed out by Mr Karim in his skeleton argument, the Tier 4 guidance states that the proof of availability of funds can be shown by bank statements including overseas accounts so long as the specified information as set out in the guidance is declared on the bank statement. The guidance does not require that funds have to be available in the sense of being immediately accessible or otherwise. Proof of liquid assets in bank accounts is, in effect, sufficient. Nor is there any requirement that the funds should be available for withdrawal or accessible within a specified time period. Bearing these matters in mind, we conclude that even if we are wrong in our view that the appellants are entitled to rely upon the wording of paragraph 11 of Appendix C, in the alternative they had a legitimate expectation that the Secretary of State would deal with their application in accordance with the wording of the policy guidance and as a consequence there would be a denial of that legitimate expectation if they were not allowed so to rely. We should add that we see no merit in this regard to the point taken by the Immigration Judge, a point we adverted to previously, about the need to be shown on a particular day a sufficient demand by persons wishing to send funds to Malawi wishing to demonstrate that on that day the appellants could have obtained in sterling the necessary sums. On our reading of the guidance and the appellants’ proper reliance on it, there is no specific requirement of such matters having to be shown. It is simply a matter of availability on the basis of the criteria set out in particular at paragraph 37 of the relevant policy guidance which is quoted at paragraph 16 of the Immigration Judge's determination.

We turn now to the second issue in this appeal which is that of the application of section 3C of the Immigration Act 1971 and its relationship to paragraph 245ZX(l) of HC 395. The relevant parts of section 3C state as follows:

“3C Continuation of leave pending variation decision

(1)

This section applies if –

(a)

a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b)

the application for variation is made before the leave expires, and

(c)

the leave expires without the application for variation having been decided.

(2)

The leave is extended by virtue of this section during any period when -

(a)

the application for variation is neither decided nor withdrawn,

(b)

an appeal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the appellant is in the United Kingdom] against the decision for application (ignoring any possibility of an appeal out of time with permission) or

(c)

an appeal under that section against that decision, brought while the appellant was in the United Kingdom, is pending within the meaning of Section 104 of that Act.

(3)

Leave extended by virtue of this Section shall lapse if the applicant leaves the United Kingdom.

(4)

A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5)

But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

...”

Paragraph 245ZX(l) states as follows:

“The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant’s current entry clearance or leave to remain expires.”

The Immigration Judge considered the interplay of these provisions at paragraphs 21 and 22 of his determination. In his view the effect of section 3C(2) was that the relevant period of leave was extended, and since the leave had been statutorily extended, the effect of section 3C(2) was that the leave did not (after all) expire. He considered that as the first appellant had applied for the variation of her leave before 30 June 2009, the date on which but for the operation of section 3C her leave would have expired, her leave was extended by section 3C(2) and that leave was continuing, under the same provision, at the date when her application was decided on 10 August 2009, it was continuing on 1 September 2009 when her course at the college began and would continue for as long as this appeal was pending unless she left the United Kingdom. He concluded therefore that the requirements of paragraph 245ZX were fulfilled.

It is necessary for us to consider this aspect of the determination, although the Secretary of State did not cross-appeal in respect of the findings in this regard. We have found the Immigration Judge erred in law in respect of the first issue, and since the matter was clearly flagged up by the Senior Immigration Judge who granted permission to appeal, it is a matter that must be addressed.

Since the Immigration Judge’s decision we have the reported decision of the Tribunal in QI (para 245ZX(l) considered) Pakistan [2010] UKUT 217 (IAC). One of the issues before the Tribunal was the situation of an appellant who had applied on 29 May 2009 for leave to remain as a Tier 4 (General) Student. The course in question was due to commence on 20 July, and his then current leave to remain expired on 30 May 2009.

The Tribunal said the following at paragraph 10:

“10.

I consider the appellant's submissions on this point are ill-founded. Whilst I would accept that the rule is badly drafted, it is inescapably clear that ‘current ... leave to remain’ must refer to an appellant’s substantive period of limited leave (in the appellant's case, the leave he had from 28 May 2008 to 30 May 2009). Were the above expression to denote Section 3C leave, then time would never start to run and the requirement would be meaningless. Further, at the time the applicant made his application, his leave could only have been his substantive leave; his Section 3C leave could not have come into being until after he received a decision. That is because Section 3C leave does not arise until ‘the leave expires without the application for variation having been decided’ (Section 3C(c)). Accordingly the IJ could not be faulted for concluding that the appellant's proposed course was not due to commence until more than one month after his leave to remain expired.”

In this regard Mr Karim argued that QI was wrong and was not binding. He argued that the one month requirement was a concession to help students who did not apply in time and they could do so if the course began within the one month period. It was there for example to assist a person whose leave expired in the summer term and where there was a requirement imposed outside the student’s control. The provision was there for people who did not have section 3C leave. Section 3C extended the period while the Secretary of State was making a decision and if at the time of the decision there was still a month between the decision and the start of the course then the person might be unsuccessful but they could succeed if the course began within a month.

Mr Avery argued that paragraph 245ZX had to be read in conjunction with what paragraph 245ZY set out in respect of courses of different lengths, the period of entry clearance to be granted before the beginning of the course and the period of entry clearance to be granted after the end of the course. It was designed to give an appellant the opportunity to reenrol although it should not be problematic as the student should have had leave to take account of the summer vacation. For example in the case of a course of twelve months or more a period of entry clearance of four months would be granted after the course ended. Otherwise a person would have to leave the country and reapply.

We agree with the reasoning of the Tribunal in QI on this point. The proper interpretation of the phrase “current ... leave to remain” at paragraph 245ZQ(l) is that it must be a reference to a substantive period of limited leave (in the instant case the leave from 27 June 2008 until 30 June 2009) and that was the only leave the appellant had at the time when she made her application. Her leave under Section 3C would not come into being until after she had received a decision, since such leave only arises when, as it is put in section 3C(i)(c), the leave expires without the application for variation having been decided. Accordingly we consider that the Immigration Judge erred in this regard and although on our interpretation of the Immigration Rules she and her dependants, the second and third appellants, meet the financial requirements of paragraph 245ZX(d) of having the necessary funds available, the appeal must be dismissed on the basis that they do not satisfy the requirements of paragraph 245ZX(l).

There was no challenge to the Immigration Judge's findings in respect of Article 8 of the ECHR, so we need say nothing about that issue. We would say, however that it will be for the respondent to consider whether it is appropriate to grant a fresh leave to remain on the basis of our findings on the first issue, and in the light of up-to-date information as to the progress of the first appellant’s studies.