Interpreting the Immigration Rules and policy guidance

An important decision has been handed down from the Court of Appeal. A student whose Tier 4 student visa application for further leave to remain was refused because he did not meet the maintenance requirement, won his appeal because he was being sponsored by a third party. This was not seen as sufficient by the Home Secretary because the money was not in the student’s account, and because it was not an “international company.”

The appeal was successful because the international company requirement was in the guidance, not the rules and therefore had to be interpreted with some flexibility. This is not a Pankina decision, but it is another contribution to the increasing amount of case law suggesting a lenient and flexible approach by Immigration judges.

Facts

Mr Agubata arrived in the UK on 6th October 2006 on a Tier 4 student visa. He was given leave to remain until 31st October 2009. He applied for further leave to remain as a Tier 4 student.

In November 2009 his application was refused under the Points Based System because he had not provided evidence of maintenance funding.

He appealed to the First Tier Tribunal where he claimed that the necessary funds would be provided by his sponsor, Massey Udegbe and Company. The judge held that Mr Agubata needed to hold the funds himself and could not rely on third party sponsorship.

At the hearing Mr Agubata had given evidence in which he stated that the company agreed to pay the fees, and maintenance, and showed bank statements of the company’s.

The judge said of that, “it does not come within the policy guidance and cannot be construed as doing so.”

Mr Agubata then appealed to the Upper Tribunal. He showed that the company had bank statements of the company showing funds of £23,686.18.

The judge concluded that the judge in the First Tier Tribunal was wrong to conclude that third party sponsorship was not allowed. But he also concluded that was,

not a material error of law because, on the limited evidence before her, the company was not an international company and it was not therefore an official financial sponsor for the purposes of the Tier 4 policy guidance.

The relevant guidance states that an official financial sponsor includes, “international company”, and “financial sponsorship can be used as evidence of money you have.”

Court of Appeal

The appeal was made on three grounds:

1. the guidance does not define “international company” and therefore it is unfair not to allow reliance on them for sponsorship;
2. the guidance was not binding as to who was a sponsor – Pankina;
3. Article 8.

The judge who gave permission for appeal, the recently retired Sir Stephen Sedley, said this was not a Pankina case. And he ought to know, being the former Lord Justice who delivered the only judgement in that case. However, he did state that as the phrase “international company” did not appear in the rules, but in the guidance, then it needs to be “purposively interpreted” and applied in order to “meet policy purposes” rather than a literal test.

This reasoning was picked up by Lord Justice Sullivan, giving the leading judgement in this case, who said the issue to be decided, irrespective of whether or not the company was an international company, was,

Since we are concerned here simply with policy guidance rather than the rules, can it be right to refuse the appellant’s application solely upon the basis of a literal application of the rules.

Sir Stephen was looking to discover the “underlying purpose” of the guidance, which was to discover whether it was capable of giving a “dependable assurance of support.”

Sullivan LJ looked at two cases that had considered the implications of Pankina. First, FA and AA, which held that funds available in the appellant’s husband’s bank account were sufficient to establish that she met the maintenance requirement, even though the funds were not in her own name.

This meant she met the requirements of the rules, and did not also need to meet the requirements of the guidance.

In CDS the Upper Tribunal said,

In the absence of specified specific additional requirements of the Immigration Rules, it seems to us that funds are ‘available’ to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated … [emphasis added]

Conclusion

There is an important passage at the end of this judgement, confirming a trend that has been present in recent decisions, about the fair application of guidance as opposed to the strict application of rules. This is largely a restatement of principles that derive from Pankina, but importantly this is not a Pankina case.

Pankina involves provisions that, in Sir Stephen Sedley’s words, involve “inclusion of a matter which was not provided for in the Immigration Rules.” This is simply to do with the way in which mandatory requirements are put into force, and how guidance is used.

In many ways the following passage is derived from Pankina but is independent of it, which is what makes it an important departure in the law:

There is a clear distinction to be drawn between mandatory requirements contained in statutory rules and policy guidance. The latter should be applied in a flexible and common sense manner so that a statement that sponsorship can be provided by X and Y should not be interpreted as meaning that sponsorship cannot be provided by Z. Plainly, if an applicant’s case falls squarely within the guidance then the application will be granted but it does not follow that if the applicant’s case falls outside the guidance it will necessarily and for that reason only have to be refused. The merits of the matter will have to be closely examined with particular regard to the underlying purpose of the provision in the guidance. If one wants to make a requirement mandatory, so that a failure to comply with it means that an application must be dismissed, then the proper course is to include that requirement in the Immigration Rules rather than in policy guidance. [emphasis added]