FA and AA (PBS effect of Pankina) Nigeria

Factual and Procedural Background

The Plaintiff, a Tier 4 (General) Student Migrant, applied for leave to remain under the Points-Based System on or about 8 October 2009. The Home Office refused the application on 29 December 2009 because the Plaintiff did not provide evidence of maintenance funds in her own name as required by Appendix C of the Immigration Rules. Instead, she submitted certified bank statements from a Lloyds TSB account held solely in the name of the Defendant, her husband and dependant. The Immigration Judge dismissed the Plaintiff's appeal on 4 March 2010, citing that the bank statements did not cover the date of application and that funds in a spouse’s account could not be relied upon under UK Border Agency (UKBA) Guidance. Permission to appeal to the Upper Tribunal was granted on 7 July 2010, following the Court of Appeal decision in Pankina v SSHD [2010] EWCA Civ 719. The appeal was heard on 23 July 2010, and the Upper Tribunal indicated their intention to allow the appeal, providing this written determination.

Legal Issues Presented

1. Whether the bank statement, dated 3 October 2009, sufficiently covered the date of the application for leave to remain.
2. Whether the Plaintiff could rely on her husband's bank account to demonstrate that maintenance funds were available to her within the meaning of Appendix C of the Immigration Rules, notwithstanding UKBA Guidance to the contrary.
3. Whether the Policy Guidance issued by the UKBA could lawfully supplement or alter the requirements set out in the Immigration Rules, particularly regarding whose bank account could be used to evidence funds.

Arguments of the Parties

Appellant's Arguments

• The bank statements submitted were certified on 3 October 2009 and thus covered the date of application, contrary to the Immigration Judge’s finding.
• The Plaintiff had access to the funds in her husband's bank account, and cultural reasons explained why the account was solely in his name.
• The Immigration Rules did not require the funds to be in the Plaintiff’s name specifically, nor did they incorporate the Policy Guidance's additional restrictions on the name on the bank account.
• Following the Court of Appeal’s decision in Pankina v SSHD, Policy Guidance cannot impose additional requirements beyond those set out in the Immigration Rules.

Respondent's Arguments

• The bank statement did not cover the date of application, as the last transaction was dated 24 September 2009.
• UKBA Guidance restricts reliance on bank statements to those in the applicant’s name or that of eligible parents, excluding spouses.
• The Policy Guidance forms a valid part of the decision-making framework and should be applied to supplement the Immigration Rules.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the issue of the bank statement date, concluding that the statement certified on 3 October 2009 sufficiently covered the date of application, dispelling the Immigration Judge’s misunderstanding that the last transaction date (24 September 2009) was the statement’s date. The Court recognized that some delay between obtaining the statement and its receipt by the Home Office was inevitable and did not undermine its validity.

The principal legal issue concerned whether the Plaintiff could rely on her husband's sole-name bank account to demonstrate available funds. The Court examined the Immigration Rules, particularly Appendix C, which require evidence that funds are available to the applicant but do not specify the name in which the funds must be held. The Court contrasted this with the UKBA Policy Guidance, which restricts acceptable bank statements to those in the applicant’s or eligible parents’ names but noted that such guidance is a departmental policy, not a rule of law, and cannot impose additional binding requirements unless incorporated into the Rules laid before Parliament.

Relying on the Court of Appeal’s decision in Pankina v SSHD, the Court emphasized that Policy Guidance must be applied with flexibility and fairness and cannot rigidly supplement or override the Immigration Rules. The Court found that the Immigration Judge erred in treating the Policy Guidance as having the force of law and in refusing the appeal on that basis.

The Court further reasoned that the Plaintiff’s access to the funds in her husband’s account was supported by evidence including payment records and statements from both parties. Given the mutual obligations between spouses, the Court considered the funds effectively available to the Plaintiff. The Court distinguished this situation from third-party support and noted that joint accounts are accepted under the Rules.

The Court did not consider Article 8 of the European Convention on Human Rights in detail, as it was not argued, but observed that even if the primary conclusion were incorrect, Article 8 might prevent termination of the Plaintiff’s studies on these grounds.

Holding and Implications

The Court ALLOWED the appeal and set aside the Immigration Judge’s decision. It held that the Plaintiff could rely on her husband’s bank account to demonstrate maintenance funds under Appendix C of the Immigration Rules. The Court clarified that UKBA Policy Guidance does not have the force of law and cannot impose additional requirements beyond those in the Immigration Rules unless properly incorporated through parliamentary scrutiny.

The direct effect is that the Plaintiff’s application for leave to remain should be granted based on the evidence of available funds. No new legal precedent was established beyond the application of existing principles from Pankina and related authorities.