(Immigration and Asylum
FA and AA (PBS: effect of Pankina) Nigeria  UKUT 00304 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
On Friday 23 July 2010
MR JUSTICE BLAKE, PRESIDENT
MR C M G OCKELTON, VICE-PRESIDENT
SENIOR IMMIGRATION JUDGE ALLEN
THE SECRETARY OF STATE FOR THE HOME
Appellants: Mr M Olatejau of Henshaw Solicitors
Respondent: Mr C Avery, Home
Office Presenting Officer
effect of the decision of the Court of Appeal in Pankina is not limited to the
‘three-month rule’ in relation to evidence of funds. Policy Guidance does not
have the status of Immigration Rules for the purposes of immigration appeals.
DETERMINATION AND REASONS
principal appellant is a student at the University of the West of England undertaking an MSc in International
Management. She started this course on 24 September 2007
and was due to complete it on 2 July 2010.
second appellant is her husband and her dependant in this application.
29 December 2009 the Home
Office refused an application made on or about 8 October 2009
for leave to remain as a Tier 4 (General) Student Migrant under the
Points-Based System. The application was refused: the points claimed
under Appendix C of the Immigration Rules were not awarded because the
first appellant had not provided any evidence of funds. Under the
calculation due under the rules she had to provide evidence that she had
maintenance funds of £2,800. What she had in fact provided in the
application was a number of certified bank statements from a Lloyds TSB
account in the name of the second appellant, her husband.
was ample evidence before the Immigration Judge that the first appellant
had access to the funds in her husband’s bank account but for cultural
reasons chose to keep that account in the husband’s single name. The
evidence to this effect included the contents of the bank statements
themselves showing payments out to the University of the West of England;
a statement from the husband that the wife was able to access these funds;
and a statement from the university that tuition fees had been in the past
been paid by Mr Abidemi Adio.
Immigration Judge heard this appeal on 22 February 2010
and dismissed it on 4
March 2010. He
identified two reasons for doing so:
(i) The last date on the bank statement was
24 September 2009 whilst the date of the application was
either 3 October as the appellant asserted or 8 October as the respondent
asserted and therefore the last entry did not cover the date of the application.
(ii) The bank statement was in the sole
name of the second appellant, the first appellant’s husband. According to the
Guidance issued by UKBA a student may in certain circumstances use the bank
statements of his/her parents. But the Guidance does not permit a student to
use the bank statement of his/her spouse to establish his/her case.
“The fact of the matter is
the Immigration Rules and the Guidance require the funds to be available to the
appellant. Despite the fact that the appellant’s husband may have provided
written confirmation that the funds are available to her, that consent may be
withdrawn at anytime and so it does not assist the appellant in this appeal. I
find that funds in the bank account of the appellant’s spouse are not available
for the appellant”.
to appeal to the Upper Tribunal was granted by the Vice-President on 7 July 2010
in the light of the Court of Appeal decision in Pankina v SSHD
 EWCA Civ 719, dated 23 June. The appeal was listed before a panel consisting
of the President, the Vice-President and SIJ Allen along with other cases
concerned with the Points-Based System and the application of UKBA
Guidance on 23 July 2010.
the end of the hearing we indicated that we would allow the appeal. We now
give our written determination explaining the reasons for doing so.
Issue 1: date of the bank statement
first ground of the IJ’s decision can be disposed of shortly. The bank
statements that were presented by the first appellant were in fact dated 3 October 2009, as appears from their printed text, and were certified
on that date as well. The rubric at the head of the statement says “the
personal data on this statement was correct at the date of printing”.
Whilst it is true that the last transaction on the last sheet of the bank
statements, a debit of £10 in favour of the University of Bristol leaving
a balance of £3,906, was dated 24 September; but the IJ has been misled
into thinking that this was the date of the bank statement and that there
was a gap between the last date on the bank statement and the date of
was no such gap upon a proper reading of that statement. Whether the
application was made on 3 or 8 October, the bank statement covered the
position as of the date of application, since there would inevitably be
some gap between the bank statement being obtained and its arriving in the
Home Office for its evaluation.
Issue 2: use of the bank statement
leaves the more important question, namely whether the appellant can rely
upon her husband’s bank account to demonstrate that she has funds
available to her within the meaning of Appendix C of the Immigration
- Para 11 of Appendix C of the Immigration
Rules as varied on 31
March 2009 provides:
“Ten points will only be
awarded if the funds shown in the table below are available to the applicant
and the applicant provides the specified documents to show this”
first appellant’s case is that she did provide evidence that funds were
available to her by reason of specified documents namely a certified bank
statement from a an acknowledged financial institution in the United
Kingdom. The respondent’s case is that the Policy Guidance issued in
respect of such claims particularly paragraph 127 to 140 requires that
apart from “Official Financial Sponsors” the bank statement submitted
should be in the first appellant’s own name or in the name of parents who
are eligible as sponsors.
are not the requirements of Appendix C or any other part of the Immigration
Rules read independently of the Guidance. The first appellant further
argues that in the light of the Court of Appeal’s decision in Pankina
guidance cannot be used to supplement the requirements of the Immigration
Rules by imposing an additional obligation on applicants that is not spelt
out in the Rules.
the case of Pankina what was in issue was the requirement of the
Guidance, not spelt out in the Rules themselves, that funds had to be
available not merely on the date of the application but for three months
Court of Appeal first posed the following questions:
“23. Counsel, to whom we are
indebted for having together presented an economical and orderly set of
documents and arguments, have agreed that the questions for the court are
(1) Can the immigration rules lawfully incorporate
provisions set out in another document which
(a) has not itself been laid before Parliament
(b) is not itself a rule of law but a departmental
(c) is able to be altered after the rule has been
laid before Parliament?
(2) If the answer is yes
(a) are the facts to be tested as at the date of
the decision or of the appeal?
(b) at whatever point the facts are to be tested,
is the policy to be applied as a policy or as a rule?
(c) in applying it, does ECHR art.8 have any
(d) If not, does art.8 have any independent
Later in the judgment it
addressed them as follows:
reason lies in questions (1)(b) and (c). A policy is precisely not a rule: it
is required by law to be applied without rigidity, and to be used and adapted
in the interests of fairness and good sense. To take the present case, the
policy guidance standing alone would not only permit but require a
decision-maker to consider whether, say, a week's dip below the £800 balance
during the three-month period mattered. This would in turn require attention to
be given to the object of the policy, which is to gauge, by what is accepted on
all sides to be a very imprecise rule of thumb, whether the applicant will be
able to support him- or herself without recourse to public funds. If that
object was sensibly met, the law might well require the policy to be applied
with sufficient flexibility to admit the applicant, or would at least require
consideration to be given to doing so. But if the requirement is a rule – and
it is the Home Secretary's case that by
incorporation it becomes a rule – then there is no discretion and no judgment
to be exercised.
29. This in itself would in
my opinion require the three-month criterion to form part of the rules laid
before Parliament if it was to be effective. But the objection goes deeper.
Albeit the first version of the policy guidance was brought into being within
the 40 days allowed by s.3(2) for the Parliamentary procedure, it has been open
to change at any time. It is this, rather than the fact that it has in the
event been changed, which, in answer to question (1)(c), is in my view
critical. It means that a discrete element of the rules is placed beyond Parliament's
scrutiny and left to the unfettered judgment of the rule-maker.
30. It may be objected that
this is pettifogging: all that the three-month provision in the policy guidance
is doing is firming up a requirement in the rules. But Ms Giovannetti, with her
customary candour, has taken no such point. Instead she has recognised that, if
her argument is sound, it means that the Home Secretary may lawfully lay before Parliament a
rule which says simply that graduates may be given leave to remain in accordance
with such policy as the Home Secretary may from time to
time adopt, and that so long as Parliament passes no negative resolution the
relevant policies will become rules and, on appeal, law. Indeed it can only be
in order to insist on such a principle that the Home Secretary did not long ago take the simple step of
amending Appendix C to include the three-month test.
33. … the operation
of the rules qua rules is one thing; what they contain as a matter of law is
another. In my judgment the statutory recognition of rules which are to have
the character and, on appeal, the force of law requires such rules to be
certain. That does not shut out extraneous forms of evidence of compliance, so
long as these are themselves specified, but it does in my judgment shut out
criteria affecting individuals' status and entitlements which – coming back now
to the questions in paragraph 23 above - (a) have not themselves been tendered
for parliamentary scrutiny, and (c) even if ascertainable at that point of
time, may be changed without fresh scrutiny. As to (b), while the fact that the
criterion absorbed into the rules comes from a policy document makes nonsense
of the notion of policy, this is not critical: the vice would be the same if
the reference in the rules were to a categorical criterion in some external but
impermanent or undetermined source.”
the light of this discussion the Court reached the conclusion at  that
the three-month criterion formed no part of the rules applicable to these
Avery submitted, on instructions, that the decision in Pankina was
confined to the application of the three-month rule. He was unable to
expand on why this should be so in the light of the broader discussion
leading to the conclusion in the particular case.
cannot agree. In our judgment the Court of Appeal was applying the
answers to the constitutional questions it posed at  to the particular
provision of the Policy Guidance that had led the applicants to fail in
their extension applications. Although it is possible that well
established practice independent of the proposed rule change that is
cross-referred to in the rules themselves may be held to form part of the
arrangements established by the Rules that Parliament was content should
operate, no such submission was advanced to us about what the Policy
Guidance had to say about the name in which the bank account needed to be.
further note that Foskett J concluded that Pankina was of wider
application in his judgment in English UK  EWHC 1726 (Admin)
at  to .
Material error of law
are therefore satisfied that the IJ made a material error of law in both
reasons for refusing the appeal. We set aside the decision and remake it
Decision on the appeal
our judgment, once it is established that the Policy Guidance does not
have the status of the Immigration Rules for the purpose of immigration
appeals, there is no reason why in a particular case an appellant cannot
establish that she has funds available to her from a bank account in her
is no question that the funds existed at all material times in sufficient
quantity and that the husband made the funds available to the wife for the
purpose of supporting her during the studies.
is not even a case of third-party support, as for many purposes husband
and wife may be regard as a single entity with mutual obligations. We do
not know whether the wife has any claim to be the legal or equitable owner
of the funds in the husband’s account. A bank account in joint names
apparently suffices under the Policy Guidance irrespective of the ability
of the signatories to withdraw funds for their own purposes or indeed the
source of the funds see: PO (Points Based scheme; maintenance: loans)
Nigeria  UKAIT 00047 and AM and SS
(PBS – Tier 1 – joint accounts) Pakistan  UKUT 169 (IAC).
the IJ seems to have accepted the explanation that the bank account
remained in the husband’s sole name for purely cultural reasons, even
though the husband was dependent on the outcome of his wife’s application
to obtain a subordinate ability to reside in the UK in accordance with the Rules.
our judgment, on the evidence before the IJ and accepted by him, this
appellant was able to demonstrate that she had funds available to her from
a UK bank account and this was sufficient for the purposes of Appendix C.
She did not need to go on to comply with additional requirements of the
conclusion is sufficient to allow the appeal.
IJ did not consider Article 8 and it has not been argued before us. We
heard the appeal along with case CDS where we consider the
application of Article 8 in some detail from  onwards. If we were
wrong about our primary conclusion in the present case, we consider
it quite likely that Article 8 would prevent this appellant’s course of
studies in the United
Kingdom being terminated
for the reasons that it was.
appeal is allowed.
C M G Ockelton
Vice-President of the Upper Tribunal
(Immigration and Asylum Chamber)