Immigration ruling

Where a foreign national student’s application for an extension of leave to remain in the United Kingdom was deficient solely because he should have sent to the UK Border Agency bank statements showing a specified minimum bank balance for a 28–day period before the application, but the statement sent covered only a 22–day period, albeit showing that there was a preceding statement in existence with sufficient funds, the agency should have given him an opportunity to supply the necessary additional statement before dismissing his application.The Supreme Court so held in allowing an appeal by Mr Manish Mandalia, an Indian national studying in England, against the decision of the Court of Appeal (Lord Justice Pitchford, Lord Justice Davis and Sir Stanley Burnton) ([2014] EWCA Civ 2) which affirmed the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Martin) to uphold the decision of the First-tier Tribunal (Immigration and Asylum Chamber) (Judge Forrester) dismissing Mr Mandalia’s appeal against the agency’s refusal of his application for leave to remain in the United Kingdom as a student under the Tier 4 (general) points system contained in Part 6A of the Immigration Rules.

At the time of the application in 2012, foreign students had to demonstrate that they had sufficient funds to support themselves by enclosing bank statements showing a minimum balance of at least £5,400 for a consecutive period of 28 days ending no earlier than a month prior to the date of the application. The application form specified the minimum balance but not the period which it had to cover, instead advising applicants to refer to the Immigration Rules and guidance on it before filling it out.

The applicant’s bank statement, numbered 64, had covered only 22 days, throughout which time his credit balance had been no less than £11,000, but stated a “carry forward” balance in excess of that amount from statement 63 (and which, when read with statement 62, showed sufficient funds for the missing 6 days).

A UK Border Agency document for its caseworkers, “PBS Process Instruction: Evidential Flexibility”, stated that where an application was liable to be refused solely because of the absence of a piece of information which they had reason to believe existed, “including … bank statements missing from a series”, they should ask the applicant for that information before determining the application. No such request was made to the applicant, who was instead informed that his application had been refused and that a decision had been made for his removal.

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