CS v The Secretary of State for the Home Department

Specified-document requirements in published immigration guidance must be construed from their plain language, context and purpose. Paragraph 96 of the Tier 1 Guidance provides alternative evidential routes. Where an applicant relies on qualifying non-electronic bank statements, paragraph 96(i) applies and no confirming letter is required.

For an overseas non-bank financial institution, the reference in paragraph 96(iv) to a home regulator identifies the body regulating the institution. It does not require that regulator to provide account information. A construction requiring a regulator to provide information which only the financial institution can supply is untenable.

The appellant, a United States national with student leave, applied for leave to remain as a Tier 1 Post Study Migrant. The respondent refused the application solely on maintenance grounds. She later produced Bank of America statements, and a supporting bank letter, showing that sufficient funds had been held in a joint account with her parents throughout the relevant period.

An Immigration Judge treated paragraph 96(iv) of the Tier 1 Guidance as requiring a letter from the United States home regulator. Reconsideration was ordered. On appeal under section 10 of the Tribunals, Courts and Enforcement Act 2007, the respondent accepted that the Guidance had been misconstrued but sought to withdraw the decision for redetermination.

The central issue was whether paragraph 96(iv) required the overseas regulator, rather than the financial institution, to confirm the applicant's funds.

1. Appeal allowed. The Tribunal refused consent for the respondent to withdraw the decision. The appellant had incurred representation costs, the Immigration Judge's construction was accepted to be wrong, and a reasoned ruling was required in the public interest.
2. The Immigration Judge made a material error of law. The Tribunal set aside the decision and remade it. Once satisfactory evidence established that the appellant had held the required funds in her United States bank account during the relevant period, her appeal should have succeeded.
3. Immigration Rules and published guidance are construed by their plain words, context and apparent purpose: Ahmed Mahad (Ethiopia) v ECO [2009] UKSC 16 was applied. Paragraph 96 contains separate alternative categories of acceptable documents. Bank of America was a bank and the appellant relied on non-electronic bank statements. Her evidence therefore fell within paragraph 96(i), which required no confirming letter.
4. The Tribunal additionally explained that paragraph 96(iv) concerns financial institutions other than banks. For overseas institutions, “home regulator” means the official body regulating the institution in the country where it operates and the funds are held. It does not identify the author of the confirmation letter. The letter must come from the financial institution, since the listed account information is information that a regulator could not provide.
5. The contrary observation in MM (Tier 1 PSW; Art 8; “private life”) Zimbabwe [2009] UKAIT 00037 mis-stated paragraph 96(iv) insofar as it required a letter from the home regulator. The Tribunal directed that the appellant be granted two years' leave to remain.

• Upper Tribunal (Immigration and Asylum Chamber): The Immigration Judge's maintenance decision was set aside for material error of law. The Upper Tribunal remade the decision, allowed the appeal and directed a grant of two years' leave to remain.
• Immigration Judge: The appeal was dismissed on the basis that paragraph 96(iv) of the Tier 1 Guidance required a letter from the United States home regulator. Reconsideration was subsequently ordered.