Enamul Ahad Molla v The Secretary of State for the Home Department

For a Tier 4 (General) application, whether a student has an established presence is determined under Immigration Rules HC 395, Appendix C. The relevant requirements must be met on the date of application. A later period of study cannot cure a failure to have completed the required six months by that date.

Policy Guidance cannot create requirements additional to the Immigration Rules. It may, however, found a legitimate expectation where it is more generous than the Rules. Where the guidance merely repeats the Rules, an error in referring to guidance rather than the Rules will not be material.

The appellant, a Bangladeshi national, applied on 30 March 2010 for leave to remain as a Tier 4 (General) Student Migrant. The Secretary of State refused the application because he did not meet the maintenance requirement in paragraph 245ZX(d) of Immigration Rules HC 395.

The First-tier Tribunal dismissed his appeal. It found that he had not shown an established presence studying in the United Kingdom and therefore could not rely on the reduced maintenance requirement. The appellant contended that he had completed a qualifying course during his last period of leave.

The Upper Tribunal considered whether the First-tier Tribunal had made a material error of law and, in particular, whether the appellant satisfied Appendix C’s definition of established presence.

1. Appeal dismissed. The First-tier Tribunal’s decision was not vitiated by an error of law.

2. The applicable requirements were those in paragraph 245ZX(d) and Appendix C of Immigration Rules HC 395. Policy Guidance cannot itself establish the requirements of the Rules. Nevertheless, following Pankina [2010] EWCA Civ 719, more generous guidance may give rise to a legitimate expectation. Here, the relevant guidance repeated the Appendix C requirements, so the First-tier Tribunal’s reliance on it caused no material error.

3. Under paragraph 14 of Appendix C, a student must show either completion, during the last period of leave, of a single course lasting at least six months, or continued study on a course of which at least six months has been completed. The student must also have studied within the preceding four months.

4. The appellant had studied within the previous four months. His foundation course, however, lasted only four months. His later degree course had begun only a few weeks before the application. He therefore had not completed six months of a single qualifying course by the application date.

5. Appendix C paragraph 1A confirms that the relevant funds must be held at the date of application. The same date governs the assessment of whether the applicant has completed the period of study required for established presence. As the appellant could not obtain the reduced maintenance level, his available funds were insufficient and he failed to qualify under paragraph 245ZX.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s conclusion that the appellant had not shown an established presence for Appendix C purposes.
• First-tier Tribunal: Immigration Judge Monro dismissed the appeal in a determination notified on 5 August 2010.