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Use Your Common Sense!
March 27, 2012
Today’s blog may seem something of a contradiction following our recent post on the Court of Appeal’s ruling that there is no ‘near miss’ argument in Immigration cases which narrowly miss the requirements of the Rules.
However, judgment was recently published in the case of Agubata v SSHD, [2012] All ER (D) 151 (Jan), in which the Court of Appeal ruled that the Secretary of State’s guidance for Tier 4 students ought to be applied flexibly and in light of the full circumstances of the case. We’ve written before to suggest that if a visa applicant meets the substantive requirements of the Immigration Rules then, arguably, UK Border Agency officials and judges ought to view administrative or procedural errors on an application with some flexibility. Similarly, this case is a pleasing result for all those who share our view that whilst the Rules must always be followed, policy guidance should be applied flexibly to make allowances for different circumstances, when those applicants still satisfy the mandatory legal requirements.
The Case
The appellant, Agubata, was a Nigerian national who arrived in the United Kingdom in 2006 on a student visa which was valid for three years. In 2009, prior to the expiration of his visa, he applied for further leave to remain as a Tier 4 (General) Student Migrant. However, the application was refused under the Points Based System on grounds that he had failed to provide evidence of the necessary funds.
In Agubata’s appeal to the First-Tier Tribunal, he argued that the necessary funds had been provided and would continue to be provided by his financial sponsor, a Nigerian company. He was able to provide evidence of this in a letter which stated that the company would continue to sponsor him for up to a period of four years, on the proviso that he would expand his skill-set and then return to work for them. However, Immigration Judge Bruce dismissed the appeal on the basis that the appellant had to personally hold the necessary funds and he could not rely on third-party sponsorship.
The case then came before Senior Immigration Judge Ward, who found that Judge Bruce’s approach to the issue of third-party sponsorship was incorrect. However, she also concluded that based on the evidence the Nigerian company was not an international company and not therefore an official financial sponsor for the purposes of the Tier 4 policy guidance. The guidance at the time stated that a student must have access to a certain level of funds dependent on the length and location of their course, but that they could be sponsored by an ‘official financial sponsor,’ from ‘Her Majesty’s Government, the student’s home government, the British Council or any international organisation, international company university or an Independent School.’
The Court of Appeal (Civil Division)
Finally, the case came before the Court of Appeal, where Lord Justice Sullivan questioned ‘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.’
He then moved on to summarise evidence heard at the previous hearing ‘as I have mentioned, the appellant…gave oral evidence and amongst other things he explained the background. He explained the company was his sponsor and had been his sponsor and he provided the bank statements in respect of the accounts held by the company,’ before concluding, ‘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.’
Lord Justice Sullivan made it clear that, if a case falls outside the policy guidance, it should not be refused for that reason alone. He advised a careful examination of the merits of the case, with particular regard given to the underlying purpose of the provision in the guidance. The Nigerian company had more than sufficient funds to sponsor Agubata. Therefore, it was wrong to dismiss the appeal purely because the Nigerian company was not an international company, because this was treating policy guidance as mandatory law and therefore a material error of law.
We dare to hope that more ‘common sense’ will be exercised in future cases…!
