HM v SECRETARY OF STATE FOR THE HOME DEPARTMENT

For the purposes of paragraph 11 of Appendix C to HC 395, funds are available where they are under the applicant’s control in an overseas bank account. The Rules do not require immediate access to sterling in the United Kingdom.

Unlaid Points-Based System guidance cannot impose additional mandatory requirements. It may nevertheless create a legitimate expectation that the Secretary of State will apply its stated evidential criteria.

Section 3C leave is not an applicant’s current leave for paragraph 245ZX(l). The one-month period is measured from the expiry of substantive limited leave. Accordingly, an application fails where the proposed course begins more than one month after that expiry.

The appellants, Malawian nationals, applied for further leave in June 2009. The first appellant sought leave as a Tier 4 student. The other appellants applied as her spouse and dependent child.

The Secretary of State refused the applications on financial and course-timing grounds. An Immigration Judge dismissed their appeals, holding that funds in a Malawian bank account were not available and that statutory extension of leave under section 3C satisfied paragraph 245ZX(l) of HC 395.

The appellants appealed to the Upper Tribunal. The central issues were whether overseas funds were available for Appendix C and whether section 3C leave extended the period from which the one-month requirement in paragraph 245ZX(l) was measured.

1. Appeal dismissed. Although the Immigration Judge erred concerning the financial requirement, the appellants could not satisfy paragraph 245ZX(l) of HC 395.

2. Paragraph 11 of Appendix C required the relevant funds to be available to the applicant. Funds controlled by an applicant in an overseas bank account are available in that sense. The Rule contained no requirement that the funds be immediately accessible in the United Kingdom or convertible into sterling on a particular day. The Immigration Judge therefore erred by relying on policy guidance to impose such a restriction.

3. Pankina v SSHD [2010] EWCA Civ 719 established that unlaid guidance could not add mandatory requirements to the Immigration Rules. The Tribunal held that this did not prevent the guidance from giving rise to a legitimate expectation. The Tier 4 guidance permitted overseas bank statements as proof of funds and did not require immediate withdrawal or access within a stated period. The appellants could therefore also rely on that expectation.

4. Following the reasoning in QI (para 245ZX(l) considered) Pakistan [2010] UKUT 217 (IAC), “current ... leave to remain” in paragraph 245ZX(l) meant the applicant’s substantive limited leave. Section 3C leave arises only after that substantive leave expires without the variation application having been decided. It could not therefore be the current leave at the time of application, as that construction would deprive the one-month requirement of effect.

5. The first appellant’s substantive leave expired on 30 June 2009 and her course began on 1 September 2009. The course accordingly commenced more than one month after expiry. The financial requirement was met, but paragraph 245ZX(l) was not. There was no challenge to the Article 8 finding. The respondent was invited to consider a fresh grant of leave in light of the financial findings and current information about the studies.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal. It held that the Immigration Judge had erred on the availability of funds and on the effect of section 3C, but the failure to satisfy paragraph 245ZX(l) of HC 395 was determinative.
• Immigration Judge: Dismissed the appeals against refusal of further leave to remain and dismissed the Article 8 appeal.