(Immigration and Asylum Chamber) Appeal Number: IA/27493/2012
THE IMMIGRATION ACTS
Heard at Field House
On 28 June 2013
On 9 July 2013
UPPER TRIBUNAL JUDGE PINKERTON
Mr asrar iqbal
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Not present or represented
For the Respondent: Ms M Tanner, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Pakistan who was born on 28 December 1986. The current appeal arises from a refusal by the Secretary of State to grant the appellant leave to remain following his application made on 23 April 2012 to remain as a Tier 4 (General) Student Migrant under the points-based system. That decision was appealed and there was an oral hearing before First-tier Tribunal Judge Chana. In a determination dated 10 April 2013 the appeal was dismissed. The date of decision was 19 November 2012.
2. The appellant sought permission to appeal the decision of the judge and permission was granted. In essence the grounds seeking permission stated that the appellant submitted his application on an old application form which the respondent said was not valid. The appellant was not aware of changes that had taken place. The judge did not accept the appellant’s factual account that he had made an in-time application. The appellant’s leave to remain expired on 14 April 2012 and the judge decided that the appellant therefore no longer had an established presence enabling him to benefit from the lower maintenance requirement granted to those with an established presence who submit their application before leave expires.
3. The appellant submitted accounts which contended that he was in possession of more than £9,000 for the requisite period. The judge decided the appellant did not meet the requirements of the Immigration Rules in that he needed to show £9,000 and any outstanding fees at date of application. It was found arguable by the judge granting permission that common law issues of fairness required the Tribunal to look again at the situation because the appellant had the appropriate amount at the time and there were difficulties that he experienced in putting his application forward on the correct form.
4. The respondent filed a Rule 24 response submitting that the judge directed herself appropriately and made findings open to her on the evidence before her. The bank statements were not put before the judge and this does not show that the judge made a material error of law.
The Hearing before me
5. On the day of hearing there was no appearance by or on behalf of the appellant but there is in the file a letter from him dated 20 June 2013, which was received on 25 June 2013 asking for a decision to be made on “written papers”. In the circumstances I decided to proceed. Ms Tanner represented the respondent.
6. The contents of the letter from the appellant dated 20 June 2013 are to the effect that he applied for an extension to remain in the UK on 11 April 2012 and this was before the expiry date of his visa which was 14 April 2012. There was an acknowledgement letter from the respondent that was issued on 17 April 2012. The appellant thought that his application was valid because he had applied before his visa expired, so he only needed to show funds for two months in his bank account. However, the application was returned to him so that he could provide the correct fees but by that time his visa had expired.
7. The application was returned to the respondent on 23 April 2012. The appellant was not aware that he had to show maintenance funds for nine months because he has an established presence in the UK. According to the Secretary of State the bank statement provided shows that the appellant only had £8,768.07 at the time and therefore he had not shown that he was in possession of the required funds of £9,000. The appellant needed just £232 more to meet the required standard. He was not aware that he had to show £9,000 and in fact he had £384.89 in his bank account from 24 March 2012 onwards and that together with the other amount shown comes to more than £9,000. The appellant provided evidence in support of the contentions set out in the letter.
8. If the appellant had appeared before me I would have explained to him that this is not a rehearing of his appeal but a hearing to decide whether the First-tier Tribunal Judge made such errors in her decision that the Upper Tribunal ought to set it aside and remake it.
9. An important feature of the points-based system is that it specifies the evidence that must be produced with the application in order to demonstrate that the criteria are met. This system can and does bring about what appear to be harsh decisions but it is an inherent feature of the points-based system that all appropriate documentation is supplied at date of application because the system puts a premium on predictability and certainty at the expense of discretion.
10. Although the appellant refers to the fact that he made his application prior to the expiry of his leave this was not accepted by the judge and she gave reasons for making that finding. Whether he made the application during the existence of his current leave or not unfortunately he did so on an outdated form and did not pay the increased fee that had very recently been imposed (from 6 April 2013).
11. Notice of the invalid immigration application was sent to the appellant by letter dated 17 April 2012. According to the letter the application form and all supporting documents were returned to the appellant. He then made a valid application but by that time it was out of date. It took the respondent some seven months to finally make a decision to refuse the application.
12. The appellant claimed 10 points for maintenance (funds) but was awarded none. This was on the basis that he did not have an established presence studying in the UK because at the date of his application he did not have current entry clearance, leave to enter or leave to remain as a Tier 4 Migrant. This is by reason of the fact that when he made his valid application, and this appears to have been on 23 April 2012, his current leave had already expired. Therefore the requirement to show fewer funds that applies to those who can show an established presence did not apply to this appellant. Although he may have had in his possession sufficient funds at the date of his (late) application he did not provide that evidence at the time and the Tribunal is prevented from taking that evidence into account by section 85A of the Nationality, Immigration and Asylum Act 2002.
13. In the circumstances therefore I am unable to find that the judge erred in the manner in which she dealt with the appeal. That finding is, however, subject to one matter and that is that in the grounds in support of the original appeal the appellant at paragraph 5 asserted that because the appellant applied before his visa expired he should be given a right of appeal “as this removal will infringe his rights under Article 8 of ECHR”. The judge did not deal with Article 8 but on the other hand there has been no expansion upon the Article 8 claim such that the failure to consider it might have brought about a different result. There was simply no information before the judge that might have led to a finding in favour of the appellant under Article 8 ECHR.
14. The First-tier Tribunal Judge did not err in such a way that the decision should be remade by the Upper Tribunal and therefore the decision to dismiss the appeal stands.
15. No anonymity direction is made. None was sought and in the particular circumstances none appears to be warranted.
Upper Tribunal Judge Pinkerton