Court of Appeal wants “common sense” in PBS

In Agubata v Secretary of State for the Home Department [2012] All ER (D) 151 (Jan) the Court of Appeal (Mummery, Etherton and Sullivan LJJ) delivered extempore judgment in a Tier 4 points-based system case on 26 January 2012.

The case involved Agubata (A), a Nigerian national. A arrived in the United Kingdom in 2006 on a three-year student visa.

He applied to renew his leave in time but the application was refused because of lack of evidence of funding to continue to study in the UK.

Subsequently, A appealed to the First-tier Tribunal (Immigration and Asylum Chamber) saying that he had the necessary funds which were made available to him via a source – a company that previously sponsored him to study was able to do so in future.

When A made his application in October 2009, the immigration rules were enhanced by the policy guidance at that time which required that a sponsor ought to be an “international company”. A’s evidence before proceedings in the FTT set out his relationship with the sponsor company explaining that he was expanding his skills before returning to work for his sponsor. A, moreover, obtained a letter from the company which confirmed this.

Equally, A also produced statements of the company’s bank accounts exhibiting balances of more than £23,000. The FTT dismissed A’s appeal because of its view that A’s reliance on third party sponsorship was not allowed under the policy guidance. A appealed to the Upper Tribunal which determined that the FTT was wrong to dismiss the appeal because of A’s reliance on the company’s money. The UT, however, dismissed A’s appeal for another reason, namely that the company, was not an international company as required by the policy guidance.

The Court of Appeal allowed A’s appeal as there was a clear distinction between the mandatory requirements contained in the immigration rules and the contents of the policy guidance.

Under SSHD v Pankina [2010] EWCA Civ 719, the UT was wrong to interpret the policy guidance as a part of the rules.

The approach of the UT was wrong – as established by FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 304 (IAC) and CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC).

The Court of Appeal called for “a need for common sense” explaining that where sponsorship was provided, refusing a case for not adhering to the guidance did not follow because the circumstances required consideration.

An older post on this blog Constitutional cases in the points-based system is available here.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Pankina, PBS, Students, Tier 4, Uncategorized and tagged , , . Bookmark the permalink.

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