(Immigration and Asylum Chamber) Appeal Number: IA/02129/2013
THE IMMIGRATION ACTS
Heard at Field House
On 24 June 2013
On 28 June 2013
Prepared 24 June 2013
UPPER TRIBUNAL JUDGE MCGEACHY
cheryl hilado reserva
For the Appellant: Mr E Ifere, Solicitor of Messrs Cranleys Solicitors
For the Respondent: Mr J Parkinson, a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of the Philippines, born on 26 June 1983 appeals, with permission, against a decision of Judge of the First-tier Tribunal Cresswell who in a determination promulgated on 8 May 2013 dismissed the appellant’s appeal against a decision of the Secretary of State to refuse the appellant a further extension of stay as a Tier 4 (General) Student Migrant under paragraph 245ZX of HC 395 as amended.
2. The appellant made an application on 31 July 2012 for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system. Her application was refused on 8 January 2013, the reason being it was not accepted that she met the maintenance requirements of the Rules. The relevant section of the letter of refusal dated 8 January 2013 stated that:-
“As you are studying outside of [sic] Inner-London you would need to show that you:
o Have the required funds to cover the fees for the first academic year of your course as the course is twelve months or more; and
o Have the required funds of £800 a month for 2 months for yourself.
Therefore you would have to prove that you have the required maintenance fees of £1,600 plus any outstanding course fees for the first year of your course. Your course fees are £2,000 for the first year of your course and you have paid this fee in full.
Paragraph 1A(h) of Appendix C of the Immigration Rules states:
‘the end date of the 90-day and 28-day periods….will be taken as the date of the closing balance on the most recent of the specified documents, and must be no earlier than 31 days before the date of application.
As such, you are required to show that you are in possession of £1,600 for a consecutive 28 day period to meet the Tier 4 (General) Student Migrant Maintenance (funds) requirements as required by paragraph 1A of Appendix C of the Immigration Rules. As the closing date of the bank statements submitted in support of your application is dated 13 July 2012, you need to snow evidence of £1,600 maintenance for 28 days from 16 June 2012 to 13 July 2012.
However, between 26 June 2012 and 1 July 2012 your bank statements state that you were in possession of no more than £1,560.98.
As such, you have not demonstrated that you have the level of funds required over the specified 28-day period to be granted as a Tier 4 (General) Student Migrant.
It has therefore been decided that you have not met the requirements as specified within the Immigration Rules and no points have been awarded for Maintenance (funds).”
3. Judge Creswell set out her findings of fact in paragraphs 15 onwards of the determination. She noted that Mr Ifere had “properly conceded that the appellant did not meet the requirements of the Rules”. She went on to say that Section 19 of the Borders Act 2007 and Section 85A of the 2002 Act applied to the determination of the appeal, with the result that she was precluded from considering any evidence other than that which was submitted at the time of the application, unless the additional evidence was adduced to prove that a document that was submitted is genuine or valid.
4. In paragraphs 18 onwards she dealt with the issue of the rights of the appellant under Article 8 of the ECHR, concluding that the removal of the appellant would not be an infringement of those rights.
5. She therefore, having found that the appellant did not meet the requirements of the Rules dismissed the appeal on both immigration and human rights grounds.
6. The appellant appealed, arguing that the respondent had not followed the policies set out in the respondent’s letter of 19 May 2011 which had stated that during a trial stage applicants should be contacted when mandatory evidence was missing from their applications and that the applicant would be given an opportunity to provide this. The grounds relied on the determination in the case of Rodriguez (flexible policy) [2013 UKUT 42 (IAC). The grounds stated that the relevant 28 day period was between 2 July 2012 and 30 July 2012 as the application was made on 31 July. As the appellant had not produced the bank statements after 13 July it appeared to be argued that the Secretary of State should have requested the bank statements for the period to 30 July 2012 and it was claimed that those would have shown that the appellant had met the maintenance requirements of the Rules.
7. The grounds also claimed that the decision on the issue of the private life of the appellant was wrong.
8. At the hearing of the appeal before me Mr Ifere referred to the grounds of appeal and to the determination in Rodriguez although he did not have a copy of that determination to place before me.
9. In reply Mr Parkinson stated that the reality was that the appellant was required to produce bank statements covering a 28 day period ending not earlier than 31 days before the date of the application. The bank statements which the appellant had submitted did cover a 28 day period and therefore there was nothing to indicate that any bank statement was missing and therefore there was no lacuna in the evidence on which the application of the policy set out in the letter of 19 May 2011 could bite. The reality was that the appellant had produced bank statements for the requisite period and they showed that she did not meet the requirements of the Rules. There was therefore no requirement for further evidence.
10. He added, in reply to Mr Ifere’s claim that it had not been conceded at the hearing of the appeal that the appellant could not meet the requirements of the Rules that the Presenting Officer’s note of the hearing recorded that Mr Ifere had made that concession.
11. Mr Ifere, in reply, merely stated that had the bank statements for the period immediately before the application been requested the appellant would have been able to show that she met the requirements of the Rules.
12. I consider there is no material error of law in the determination of the First-tier Judge. The reality is that the judge had before her bank statements for the relevant period. I consider that what was written in the determination, which is echoed by the note of the Presenting Officer did accurately reflect the fact that it was conceded at he hearing of the appeal in the First-tier that the appeal could not succeed under the Immigration Rules. It is clear that there were no lacunae in the bank statements which were produced which should have triggered an inquiry by the respondent as to the existence of further monies.
13. I further consider that the Immigration Judge dealt properly with the issue of the rights of the appellant under Article 8 of the ECHR taking into account the fact that the appellant had now been in Britain for a number of years and who had obtained the qualifications which she had set out to obtain when she was initially granted entry clearance. The judge had taken into account the friendships which the appellant would have made here as well as her relationship with her boyfriend.
14. I therefore find that there is no material error of law in the determination of the Immigration Judge and that her decision dismissing this appeal on both immigration and human rights grounds shall stand.
Upper Tribunal Judge McGeachy