Chike Casimir Ejifugha & Anor v The Secretary of State for the Home Department

For Tier 4 maintenance requirements, paragraph 11 of Appendix C requires that the stipulated funds be available to the applicant. The word should not be glossed by a requirement that the applicant must hold the money in a bank account or have a specified closing balance.

Policy guidance cannot add such requirements to the Immigration Rules HC 395. A credit-card facility may constitute available funds where the applicant can draw down the available credit for personal or family use. The absence of a fixed-term or formally documented loan agreement does not prevent those funds from being available.

The first appellant, a Nigerian national, applied for further leave as a Tier 4 (General) Student Migrant. His wife’s application as his dependant depended on the success of his application. The Secretary of State refused both applications because their cash balances did not reach the agreed maintenance figure of £2,666 during the relevant period.

The First-tier Tribunal found that statutory maternity payments and the appellant’s credit-card facility could not make up the shortfall. On appeal, the Upper Tribunal considered whether credit available under that facility counted as funds available under Appendix C to the Immigration Rules HC 395.

1. The appeals were allowed. The First-tier Tribunal had materially erred in law by requiring the appellant to have held the necessary funds and by relying on requirements in policy guidance.

2. Under paragraph 245ZX(d) and paragraph 11 of Appendix C to the Immigration Rules HC 395, a Tier 4 applicant must obtain ten points for funds and show that the prescribed amount is available. That is the word to be construed. The Rules impose no additional requirement that the money be held in a bank account or shown by a particular balance.

3. Following Pankina [2010] EWCA Civ 719, policy guidance is not part of the Immigration Rules for an immigration appeal. The earlier approach in PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047, which treated compliance with the guidance as necessary, had therefore been overtaken.

4. The available credit of more than £1,200 on the appellant’s card was an arrangement from which he could draw funds for himself and his family. It was not materially different from funds belonging to a third party who was willing to deploy them for the applicant, as recognised in FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) and CDS (PBS – “available” – Article 8) Brazil [2010] UKUT 00305 (IAC). Its revocability, and the lack of a formal loan agreement, did not alter its availability.

5. The Tribunal set aside the First-tier Tribunal’s decision and remade it by allowing both appeals. It did not revisit Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for material error of law and remade the decisions by allowing both appeals.
• First-tier Tribunal: Found that the appellants had not demonstrated the required maintenance funds and did not treat the first appellant’s credit-card facility as available funds.
• Secretary of State: Refused the first appellant’s Tier 4 application and the second appellant’s dependant application.