Molla (established presence – date of application) Bangladesh

The case of Molla (established presence – date of application) Bangladesh [2011] UKUT 161 (IAC)  touches on the important role that Home Office Guidance can often play in the world of the PBS Rules.

Facts

The appellant, a citizen of Bangladesh, who was unrepresented in this appeal, applied for leave to remain as a Tier 4 (General) Student Migrant under the PBS.

The First-tier Tribunal dismissed his appeal against the Home Office decision that he did not meet in full the requirements of para 245ZX (d) of HC 395 as amended. It was not in dispute that the appellant was someone who was “studying in inner London” for the purposes of the Rules. However, the appellant did not, at the relevant time, have sufficient savings to cover the full costs of the fees for his course, or the maintenance requirement.

“Established presence”

The Respondent accepted that the appellant could qualify under Appendix C of the Rules if he was only required to show a reduced rate of funds by virtue of having an “established presence”.

The IJ, citing the Home Office’s Tier 4 Policy Guidance, concluded that the appellant did not qualify for reduced maintenance levels as he had not shown he had “an established presence studying in the United Kingdom” and so, as a result, he had not shown he had sufficient funds.

Pankina [2010] EWCA Civ 719 and the use of Policy Guidance

By the time the appellant’s application for permission to appeal came before a Senior Immigration Judge, the Court of Appeal had found in Pankina [2010] EWCA Civ 719 that Policy Guidance does not have the status of law and cannot therefore be used to establish the requirements of the Immigration Rules. Therefore, given the IJ’s apparently exclusive reliance on Policy Guidance, the SIJ found that there was an arguable error of law.

The first question that arose for SIJ Storey was whether the IJ had erred in trying to decide the case by reference to the Policy Guidance provisions dealing with persons having established presence. SIJ Storey stated that even though Pankina held that the Policy Guidance cannot be used to establish the requirements of the Immigration Rules, Sedley LJ had made clear in that case that it can nevertheless give rise to a legitimate expectation that appellants should be able to benefit from Policy Guidance provisions that are more generous than the Rules.

However, SIJ Storey also found that the applicable Immigration Rule itself specifies what “established presence” is, and the requisite level of funds (in addition to course fees) needed for Tier 4 applicants. In respect of established presence, the requirements of the Policy Guidance do no more than reiterate the requirements of the applicable Immigration Rule. SIJ Storey therefore held that the IJ did not err in law in applying the criteria she did relating to Tier 4 (General) Students.

Date of application

The second question that arose was whether, given that the IJ had relied on the correct requirements, although failing to note they were set out in the Rules, she had erred in law in concluding the appellant could not show established presence.

SIJ Storey held that notwithstanding certain shortcomings, the IJ’s assessment was properly based on the appellant’s failure to show he qualified under para. 245ZX. When assessing whether a Tier 4 (General) applicant has an “established presence”, the relevant date for calculating whether he has completed a course of study within specified periods of time is the date of application. The assessment that the applicant did not was not vitiated by legal error, given that the guidance cited by the IJ did no more than reiterate the requirements set out in Appendix C of the Immigration Rules.

As this case makes clear, PBS applications, despite being originally described as sufficiently simple to oust the need for legal advice, are often extremely complicated, and may very well require an applicant to receive legal assistance in order to navigate the ever-changing Immigration Rules and Policy Guidance.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: