CDS v The Secretary of State for the Home Department

Unpublished policy guidance cannot add mandatory requirements to the Immigration Rules. Funds required by Appendix C are “available” where a third party has the resources and is willing to deploy them for the applicant’s maintenance.

Article 8 does not confer a general discretion to disregard the Immigration Rules. However, a student lawfully admitted to complete an ongoing higher-education course may establish private life deserving respect. Refusal may be disproportionate where the applicant has adequate financial support and failure results solely from an arbitrary guidance requirement rather than a substantive inability to maintain herself.

The appellant, a Brazilian national, had leave as a student and applied to extend her stay as a Tier 4 (General) Student Migrant. The Secretary of State refused the application because her personal bank account did not contain the required maintenance funds. Although two doctors were willing and able to support her, the policy guidance permitted reliance on another person’s account only where that person was a parent or legal guardian.

An Immigration Judge dismissed her appeal, holding that she could not meet paragraph 245ZX(d) of the Immigration Rules and that Article 8 was not engaged or, alternatively, that interference with her private life was proportionate. The Upper Tribunal considered whether the guidance could impose that additional sponsorship requirement and whether refusal was compatible with Article 8.

1. Appeal allowed. The Immigration Judge erred in treating the policy guidance as a mandatory additional requirement. Following Pankina v SSHD [2010] EWCA Civ 719, guidance not laid before Parliament when the Points Based System began could not add conditions absent from the Immigration Rules.

2. Appendix C required the requisite funds to be “available” to the applicant. In the absence of an express rule excluding third-party assistance, funds are available where a third party has them and is shown to be willing to deploy them for the applicant’s support. The evidence established that the appellant’s sponsors had ample resources and would have transferred the modest sum required. The word could not be read restrictively by importing the policy guidance’s parent-or-guardian limitation. The Tribunal applied the need for unambiguous rules identified in Mahad v ECO [2009] UKSC 16.

3. Alternatively, the appeal would have succeeded under Article 8. Article 8 does not provide a free-standing power to dispense with the Immigration Rules, and voluntary migration for education does not ordinarily create a right to admission. Yet a person lawfully admitted for an unfinished course may develop private life through the course, institution, educational progression and social ties.

4. Applying the proportionality principles discussed in Huang, the Tribunal held that refusal was disproportionate. The appellant had made appropriate progress, had no adverse discretionary factors, and had sufficient support to avoid public funds. The public interest carried reduced weight because the obstacle was an arbitrary guidance requirement rather than failure to meet the substantive maintenance purpose of the Rules. The decision was set aside and remade by allowing the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Immigration Judge’s determination, and remade the decision in the appellant’s favour.

• Immigration Judge: Dismissed the appeal against refusal of further leave as a Tier 4 student, finding that paragraph 245ZX(d) of the Immigration Rules was not met and that Article 8 did not assist the appellant.