FA & Anor v The Secretary of State for the Home Department

Policy Guidance does not have the legal status of the Immigration Rules in an immigration appeal. It cannot add a substantive eligibility requirement affecting an applicant’s status or entitlement where that requirement is absent from the Rules.

The effect of Pankina v SSHD [2010] EWCA Civ 719 is not confined to the requirement that funds be held for three months. Where Appendix C requires funds to be available to an applicant, adequate evidence may establish availability from a spouse’s sole bank account. The applicant need not satisfy additional restrictions in Policy Guidance concerning the account holder’s identity.

The principal appellant, a Tier 4 student, applied for leave to remain. Her husband was her dependant. The Secretary of State refused the application because the appellant had claimed no maintenance points under Appendix C of the Immigration Rules.

The evidence comprised certified statements for a bank account held solely by the husband. The Immigration Judge dismissed the appeal because the final transaction pre-dated the application and the Policy Guidance did not permit reliance on a spouse’s account. Permission to appeal was granted following Pankina v SSHD [2010] EWCA Civ 719.

The Upper Tribunal considered whether the statements covered the application date and whether Policy Guidance could require the account to be in the applicant’s own name or a parent’s name.

1. Appeal allowed. The Immigration Judge made material errors of law in both reasons for dismissing the appeal. The Tribunal set aside that decision and remade the appeal.

2. The certified bank statements were dated 3 October 2009. The date of the last transaction, 24 September, was not the date of the statement. The statements therefore showed the position at the date of application, whether that date was 3 or 8 October.

3. Paragraph 11 of Appendix C required the relevant funds to be available to the applicant and required specified documents to prove that fact. It did not require the bank account to be in the applicant’s own name, or in a parent’s name.

4. Applying Pankina v SSHD [2010] EWCA Civ 719, the Tribunal held that Policy Guidance could not supplement the Immigration Rules by imposing such an additional substantive requirement. The Court of Appeal’s reasoning was not confined to the three-month criterion for maintenance funds. No established practice independently incorporated into the Rules was relied on in respect of the account-holder requirement.

5. The evidence, accepted by the Immigration Judge, established that sufficient funds existed and that the husband had made them available to the appellant for her studies. That met the requirement in Appendix C. The appellant was not required to comply with the additional requirements in the Policy Guidance.

6. Article 8 was neither considered by the Immigration Judge nor argued before the Tribunal. The Tribunal added, obiter, that if its primary conclusion were wrong, Article 8 would quite likely prevent termination of the appellant’s course for those reasons.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the Immigration Judge’s dismissal for material error of law, and remade the decision in the appellants’ favour.
• Immigration Judge: dismissed the appeal on 4 March 2010 after a hearing on 22 February 2010.