England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: IA/04652/2010]

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th January 2012

Lord Justice Sullivan:

1. This is an appeal against the determination dated 25 August 2010 of Senior Immigration Judge Ward in the Upper Tribunal (Immigration and Asylum Chamber) dismissing the appellant's appeal against the decision dated 12 April 2010 of Immigration Judge Bruce in the First-Tier Tribunal. The Immigration Judge had dismissed the appellant's appeal against the respondent's refusal of his application for leave to remain as a Tier 4 (General) Student Migrant. The appellant arrived in the United Kingdom on 6 October 2006 on a student visa. He was granted leave to remain as a student and he studied successfully between 2006 and 2009.
2. On 29 October 2009, prior to the expiry of his leave on 31 October 2009, the appellant applied for further leave to remain as a Tier 4 student. His application was refused under the points-based system in November 2009 because he had not provided evidence of necessary funds.
3. In his appeal to the tribunal, the appellant said that the necessary funds had been provided and would continue to be provided by his financial sponsor, Massey Udegbe and Company ("the company"). In a letter dated 15 October 2009 to the appellant, the company had said:

"The company is still sponsoring you up to a period of four years but subject to a bond of service with the company for a term of five years after you have qualified. Our financial responsibility to you during the period of study will cover tuition fees, feeding accommodation and salaries."

4. Immigration Judge Bruce dismissed the appellant's appeal upon the basis that the appellant had to personally hold the necessary funds and he could not rely on third-party sponsorship. The appellant had given oral evidence before Immigration Judge Bruce. He had explained how he had been sponsored by the company who had agreed to pay his fees on the basis that he would expand his skill-set and return to work. He explained the courses that he had been on and that he had an excellent attendance record. He also provided additional documentary evidence, namely two sets of original bank statements issued by two different banks in respect of accounts held by the company. Immigration Judge Bruce said in paragraph 22 of his determination:

"The Appellant could not show, with reference to the applicable policy guidance, that he had the available funds. He did not have £3150 in an account in his name, or in a loan, or offered by official government sponsorship. What he has is third party sponsorship. Whilst that may be a perfectly genuine offer, it does not come within the policy guidance and cannot be construed as doing so. The appeal under the immigration rules therefore falls to be dismissed."

5. The Immigration Judge added that he had indicated to the appellant that he accepted that the appellant was a genuine student who had worked hard and shown good attendance and he further added that, had he found that the appellant had met the substantive requirements of the rules, he would have been minded to allow the appeal pursuant to Article 8 of the European Convention on Human Rights. but said that sadly the appellant had been unable to demonstrate that he was able to meet the requirements of the rules.
6. The appellant sought permission to appeal to the Upper Tribunal and included in his Grounds of Appeal was a statement not merely that the company had provided letters setting out the terms on which they were prepared to give him sponsorship, but:

"They also provided bank statements with a bank balance of £22,200.90...in United Bank for Africa and £1,485.28...in Platinum Habib Bank making a total of £23,686.18."

7. Permission to appeal was granted upon the basis that it was arguable that the Immigration Judge had applied the wrong paragraph of the policy guidance. It will be noted that no question was raised at that stage as to the amount of funds. The issue was, were the funds actually available to the appellant?
8. The matter came before Senior Immigration Judge Ward, who concluded that the Immigration Judge's approach to the issue of third-party sponsorship was wrong. However, the Senior Immigration Judge also concluded that the Immigration Judge's error in excluding third-party sponsorship was not a material error of law because, on the limited evidence before her, the company was not an international company and it was not therefore an official financial sponsor for the purposes of the Tier 4 policy guidance that was applicable at the time of the appellant's application. The Senior Immigration Judge discussed the limited evidence that had been provided in respect of the company and said that there was little to indicate that the undertaking was an international company:

"There is no indication of any foreign presence in the company -- the only address shown is '2A Montgomery Road, Yaba, Lagos'. The available evidence, therefore, points to this being an enterprise run by one proprietor/managing partner providing real estate related services from an office in Lagos. There is no adequate evidence that this is a registered company or that it does business internationally or has any international presence."

9. The guidance to which the Senior Immigration Judge referred was at the relevant time in these terms. Paragraph 33 explained under the heading "money needed":

"A student will not have access to most state benefits (known as public funds) so as to have enough money to support himself herself so that he /she does not face financial difficulties whilst studying in the United Kingdom. The money a student needs depends on the length of the course where he/she will study."

10. Paragraph 41:

"A student may be sponsored by an official financial sponsor. An official financial sponsor is Her Majesty's Government, the student's home government, the British Council or any international organisation, international company, university or United Kingdom independent school."

11. And paragraphs 123 and 124 under the heading "official financial sponsor or government sponsor":

"123. Financial sponsorship is where a student is given money to cover some or all of his/her course fees and/or living costs, this financial sponsorship can be used as evidence of money you have."

124. A student can receive official financial sponsor from Her Majesty's Government, the student's home government, the British Council or any international organisation, international company university or an Independent School."

12. Under the heading "Documents needed to Claim Points for Maintenance (funds)" paragraph 125 says:

"To claim 10 points for Maintenance (funds) a student must show evidence that he or she has paid

all or part of his/her course fees and accommodation fees to his/her tier 4 sponsor; and/or

is receiving official financial sponsorship; and/or

has enough money to cover his/her remaining course fees and living costs if any "

13. The appellant appealed against that decision. Permission to appeal was refused on the papers. The appellant renewed his application for permission to appeal and at a hearing on 20 July 2011 Sir Stephen Sedley granted permission to appeal. He set out his reasons for granting permission to appeal in a short judgment: [2011] EWCA Civ 1038. In summary, in her advocate's statement Ms Iqbal had raised three issues, firstly that given the lack of definition of international company in the guidance it was unfair not to allow the appellant to rely on the company as his sponsor. Secondly, that in any event the guidance was not binding as to who could be a financial sponsor, applying the Court of Appeal's decision in Pankina v SSHD [2010] EWCA Civ 719. And thirdly, it was contended that there had been a failure to consider the appellant's Article 8 rights.
14. Although Sir Stephen Sedley did not accept that the present appeal was a Pankina case in the sense that it involved the inclusion of a matter which was not provided for in the Immigration Rules, he considered that one submission was, as he described it, "eminently viable". He described that submission in his own words in paragraph 4 of his judgment: that because the phrase "international company" did not form part of the Immigration Rules it needed to be purposively interpreted, applied and if necessary expanded, in order to meet the policy purpose rather than any literal test. He amplified that reasoning in paragraph 6 of his judgment. This was not a Pankina case in the sense that a mandatory requirement had been imposed in guidance which should have been imposed in the rules and all that there was here was guidance. He continued:

"But the point about policy guidance is that it is precisely that. It is not a set of rules. Anybody applying it has got it, in my present view, to look beyond the literal wording in the policy guidance to the purpose for which the guidance is there and to ask certain questions in a case such as the present "

15. Sir Stephen set out certain questions, one of them being what is the meaning of "an international company", but much more than that he focussed upon the underlying purpose, which he suggested was to discover whether a company, even though it was established abroad, was a sound and reputable company capable of giving a dependable assurance of support.
16. It is against that background that Ms Iqbal pursues the appellant's appeal. Sir Stephen did not restrict the grounds of appeal that could be advanced. Ms Iqbal advanced three grounds of appeal. Firstly that the company was an international company, secondly what I would describe as the Pankina point and thirdly the failure to address the appellant's Article 8 rights.
17. With respect to Ms Iqbal, I was unpersuaded by her very careful submissions that this company, at least upon the material that was placed before the Senior Immigration Judge could sensibly be described as an international company. But it is unnecessary to reach any concluded view about that issue because, even if it is assumed against Ms Iqbal that the company was not an international company, and that it was simply a foreign company that was located in one state, that still leaves unanswered the point raised by Sir Stephen Sedley in paragraph 6 of his judgment. Since we are concerned here simply with policy guidance rather than the rules, can it be right to refuse the appellant's application solely upon the basis of a literal application of the rules. There seems to have been no question, at least before the Immigration Judge, that the company had been providing adequate sponsorship for this appellant for some years and was prepared to continue to do so. Moreover accounts had been produced which showed that the company had the necessary funds. The only point taken against the appellant by the Immigration Judge was that third party sponsorship of any kind was not available. That error was corrected by the Senior Immigration Judge, who disposed of the matter simply upon the basis that the company was not an international company.
18. It is helpful to consider what the rules themselves as opposed to the guidance require. Paragraph 245ZX of the Rules required the appellant to have inter alia a minimum of ten points under paragraphs 10 to 13 of appendix C to the Rules. Paragraph 10 stated that: "A tier 4 (general) student must score 10 points for funds." Paragraph 11 said:

"10 points will only be awarded if the funds shown in the table below are available to the applicant. When the applicant provides the specified documents to show this. Notes to accompany the table appear below the table."

I emphasise the words that the applicant had to show that "the funds were available to the applicant". That was the requirement in the Rules.

19. Paragraph 13 of Appendix C said:

"Guidance published by the United Kingdom Border Agency will set out when funds will be considered to be available to an applicant, including the circumstances in which the money must be that of the applicant and the extent to which a sponsorship arrangement that provides the required funds will suffice."

Thus it was made clear that that further advice was in the form of guidance rather than embodied in the rules themselves.

20. The implications of the Pankina decision were considered in two determinations of the Upper Tribunal in July 2010. FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) and CDS (PBS: 'available': Article 8) Brazil [2010] UKUT 00305 (IAC). Although, in his skeleton argument, Mr Blundell correctly submitted those authorities are not binding on the Court of Appeal, the Secretary of State did not appeal against them and before us, in his oral submissions, Mr Blundell did not submit that those decisions of the Upper Tribunal were wrongly decided. In the FA case the available funds were in the appellant's husband's bank account whereas the guidance said that the funds must be in the appellant's own name and/or in the names of her parents. The Upper Tribunal concluded that Pankina was not limited to what has been described as the three-month rule, and it said in paragraph 21 :

"In our judgment, once it is established that the Policy Guidance does not have the status of the Immigration Rules for the purpose of immigration appeals, there is no reason why in a particular case an appellant cannot establish that she has funds available to her from a bank account in her husband's name."

21. And then in paragraph 25:

"In our judgment, on the evidence before the IJ and accepted by him, this appellant was able to demonstrate that she had funds available to her from a UK bank account and this was sufficient for the purposes of Appendix C. She did not need to go on to comply with additional requirements of the Policy Guidance."

22. In CDS, another decision of the Upper Tribunal, presided over by the Chamber President, Blake J, the appellant had sponsorship from two doctors who were not her parents. The First-Tier Tribunal had dismissed her appeal. The Upper Tribunal allowed her appeal against the First-Tier Tribunal's determination, saying in paragraph 10:

"We are satisfied that in applying the guidance as a source of mandatory additional obligation as to the identity of permissible sponsors that the IJ erred in law."

And in paragraph 13:

"In the absence of specified specific additional requirements of the Immigration Rules, it seems to us that funds are 'available' to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated … "

23. Ms Iqbal submits that, applying the approach in those authorities, the appellant had established that he had funds available to him from the company. There was no issue as to the genuineness of the company's offer or, subject to a matter that I will mention in a moment, the amount of money that the company was able to make available to the appellant, and the Senior Immigration Judge had erred in treating the guidance "as a source of mandatory additional obligation as to the identity of permissible sponsors" in precisely the same manner as the Immigration Judge in the First-Tier Tribunal had erred in the CDS case.
24. In reply Mr Blundell accepted that the guidance in question was simply guidance. The requirement for there to be an international company was not contained at the material time in the Immigration Rules. Therefore the guidance had to be interpreted flexibly and he accepted that, if there had been some material before the Secretary of State on which the Secretary of State could have exercised a discretion to depart from the strict requirements of the guidance, then the Secretary of State would have been prepared to do so. His underlying submission, however, was that in order for there to be the possibility of flexibility in the application of guidance the necessary evidential material had to be made available to the decision maker and that material, he submitted, was not available to the Secretary of State or to Senior Immigration Judge Ward.
25. While I readily accept that the appellant provided relatively little information to the Secretary of State in his application, the matter had changed by the time of the hearing before Immigration Judge Bruce. As I have mentioned, the appellant appeared at that hearing, he gave oral evidence and amongst other things he explained the background. He explained the company was his sponsor and had been his sponsor and he provided the bank statements in respect of the accounts held by the company. It seems to me, therefore, that, subject to the third-party sponsorship argument which was the argument which found favour by the Immigration Judge, there was material before the Immigration Judge upon which the guidance could and indeed should have been applied flexibly. Moreover that material by way of background was available at the hearing before Senior Immigration Judge Ward, even though the appellant did not appear at that hearing.
26. Mr Blundell drew our attention to paragraph 3 of the Senior Immigration Judge's determination, which sets out the thrust of the submissions that were made on behalf of the respondent. It was said that the appellant had not produced evidence at the hearing to show that he, through his own resources and/or those of his sponsors, could meet the required maintenance sum of £3,150:

"Furthermore, the company sponsoring him had not been shown to meet the definition of official sponsor. There was no evidence to show that it was an 'international company'. Although there was no precise definition of that term, the appellant would have had to show that it was a company with an international presence. It was submitted that he had not done so."

27. Two matters arise in respect of the respondent's submissions before the Senior Immigration Judge. The first is that, notwithstanding Mr Blundell's acceptance before this court that the guidance is not to be rigidly applied and should be applied flexibly, precisely because it is guidance rather than an enactment, that was plainly not the approach that was being urged on behalf of the respondent before the Senior Immigration Judge. The point was being made quite simply that this company was not an international company and therefore the application must fail. It is plain, in my judgment, that that was the approach that was adopted by the Senior Immigration Judge and that, in the light of the decisions in FA and CDS, she erred in doing so. There is a clear distinction to be drawn between mandatory requirements contained in statutory rules and policy guidance. The latter should be applied in a flexible and common sense manner so that a statement that sponsorship can be provided by X and Y should not be interpreted as meaning that sponsorship cannot be provided by Z. Plainly, if an applicant's case falls squarely within the guidance then the application will be granted but it does not follow that if the applicant's case falls outside the guidance it will necessarily and for that reason only have to be refused. The merits of the matter will have to be closely examined with particular regard to the underlying purpose of the provision in the guidance. If one wants to make a requirement mandatory, so that a failure to comply with it means that an application must be dismissed, then the proper course is to include that requirement in the Immigration Rules rather than in policy guidance.
28. The second matter that arises in respect of paragraph 3 of the Senior Immigration Judge's determination is the contention made on behalf of the respondent that the appellant had not shown that he could meet the required maintenance sum of £3,150. Mr Blundell submitted that, whatever might be said about the Senior Immigration Judge's approach to the need for the company sponsoring the appellant to be an international company, the appellant had failed to provide sufficient particulars of the funds that were available to him and he referred to the fact that the Senior Immigration Judge had said that the material before her was very limited indeed.
29. In my judgment there is no force in that submission. As I have mentioned it is clear from Immigration Judge Bruce's determination that, when the appellant appeared to give oral evidence before Immigration Judge Bruce, he submitted the bank statements in respect of accounts held by Massey Udegbe. It is perfectly true that Immigration Judge Bruce does not set out what sums were held in those accounts, but it is a fair inference that the sums were adequate, otherwise the issue of third-party sponsorship would not have arisen. If sufficient funds were not available, whether in the hands of the appellant or in the third party sponsor, that would have been sufficient to dispose of the appeal. But the matter can be taken somewhat further because, as I have mentioned, the appellant contended in his grounds of appeal to the Upper Tribunal that those two accounts had shown a total balance of £23,600. The Grounds of Appeal indicate that supporting documents were provided to the Upper Tribunal. Since permission to appeal was given to appeal from the First-Tier Tribunal to the Upper Tribunal, it is reasonable to suppose that the lack of the funds as opposed to the identity of the person holding the funds was no longer an issue. Moreover, if one looks at the Senior Immigration Judge's determination, the matter is decided against the appellant not on the basis that the required maintenance sum of £3,150 is not available from his sponsor but upon the basis that his financial sponsor is not an international company.
30. It seems to me, therefore, that the Senior Immigration Judge in dismissing the appellant's appeal simply upon the basis that the company was not an international company fell into the error of treating the guidance as though it was a mandatory enactment and in that respect made a material error of law. For that reason I would allow this appeal.

Lord Justice Etherton :

31. I agree.

Lord Justice Mummery:

32. I also agree.

Order: Appeal allowed