Agubata v Secretary of State for the Home Department

Policy guidance governing immigration applications must be applied flexibly and with common sense, by reference to its underlying purpose. It is not equivalent to the Immigration Rules. Guidance identifying types of permitted sponsor should not ordinarily be read as an exhaustive prohibition on other sponsors. A case outside the guidance must be assessed on its merits, including evidence that the proposed sponsor can and will provide the required funds. If compliance is intended to be mandatory, the requirement must be included in the Immigration Rules. A tribunal therefore errs in law by treating guidance as a rigid enactment and refusing an application solely because the sponsor falls outside a stated category.

The appellant, a student in the United Kingdom, applied for further leave to remain as a Tier 4 (General) Student Migrant. His application was refused because he had not provided the required evidence of maintenance funds. The First-tier Tribunal dismissed his appeal, treating the funds as required to be held personally or provided through specified official sponsorship.

The Upper Tribunal accepted that the First-tier Tribunal had wrongly excluded third-party sponsorship, but dismissed the appeal on the basis that the sponsoring company had not been shown to be an international company. The Court of Appeal considered whether the policy guidance could impose a mandatory sponsor-identity requirement, whether the company’s funds were available to the appellant, and the related Pankina and Article 8 arguments.

Appeal allowed unanimously.

1. Rules and guidance. Paragraph 245ZX of the Immigration Rules, read with Appendix C, required a Tier 4 student to obtain 10 points for funds and to show that the funds were available to the applicant. Appendix C paragraph 13 expressly left to guidance the circumstances in which funds would be treated as available, including sponsorship arrangements.
2. Flexible application. Pankina v SSHD [2010] EWCA Civ 719 was not a Pankina case in the precise sense that it involved a mandatory requirement in guidance which ought to have appeared in the Rules. However, the distinction between mandatory Rules and policy guidance remained decisive. The guidance had to be applied flexibly, purposively and in a common-sense manner. The Court applied the reasoning in FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) and CDS (PBS: ‘available’: Article 8) Brazil [2010] UKUT 00305 (IAC).
3. Sponsorship outside the guidance. A statement that sponsorship could be provided by specified categories did not mean that sponsorship by every other person or entity was excluded. Where a case fell outside the guidance, the decision-maker had to examine the merits closely, particularly the underlying purpose of the guidance. Evidence of a genuine sponsorship arrangement, the sponsor’s ability to provide the funds and the availability of adequate funds were relevant.
4. Error and disposition. The Senior Immigration Judge treated the requirement for an international company as a mandatory enactment and dismissed the appeal solely because the company did not fall within that description. That was a material error of law. The Court did not need to reach a concluded view on whether the company was an international company. The appeal was allowed.

• Court of Appeal (Civil Division): Permission to appeal was granted by Sir Stephen Sedley on 20 July 2011 in [2011] EWCA Civ 1038. On 26 January 2012 the Court allowed the substantive appeal for material error of law.
• Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge Ward dismissed the appeal on 25 August 2010. The Tribunal accepted that third-party sponsorship had wrongly been excluded but considered the error immaterial because the sponsor was not shown to be an international company.
• First-tier Tribunal: Immigration Judge Bruce dismissed the appeal on 12 April 2010 against refusal of the application for further leave to remain.