UK court defines ‘international company’ in student visa case

THE United Kingdom legal position regarding sponsorship of students by third parties has been clarified in Agubata v Secretary of State for the Home Department [2012] EWCA Civ 140.

Agubata, a Nigerian citizen, arrived in the United Kingdom on October 6, 2006, on a student visa. He was granted leave to remain as a student and renewed his visa until 2009. Prior to the expiry of his visa, he applied for further leave to remain as a Tier 4 student. His application was refused under the points-based system in November 2009 because he had not provided evidence of necessary funds.

In his appeal to the tribunal, Agubata argued that the necessary funds had been provided and would continue to be provided by his financial sponsor, Massey Udegbe and Company. The company provided its bank statements as well as a sponsorship letter which read:

“The company is still sponsoring you up to a period of four years but subject to a bond of service with the company for a term of five years after you have qualified. Our financial responsibility to you during the period of study will cover tuition fees, feeding accommodation and salaries.”

The applicable Policy Guidance stated at paragraph 41:

“A student may be sponsored by an official financial sponsor. An official financial sponsor is Her Majesty’s Government, the student’s home government, the British Council or any international organisation, international company, university or United Kingdom independent school.”

The Immigration Judge accepted that Agubata was a genuine student who had worked hard and shown good attendance, but added:

“What he has is third party sponsorship. Whilst that may be a perfectly genuine offer, it does not come within the policy guidance and cannot be construed as doing so. The appeal under the immigration rules therefore falls to be dismissed.”

Agubata went to the Upper Tribunal and came before Senior Immigration Judge Ward. She concluded that the Immigration Judge’s approach to the issue of third-party sponsorship was wrong, but the error in law was not material because, on the limited evidence before her, the company was not an international company and it was not therefore an official financial sponsor for the purposes of the Tier 4 policy guidance that was applicable at the time of the appellant’s application.

The Senior Immigration Judge discussed the limited evidence that had been provided in respect of the company and said that there was little to indicate that it was an international company:

“There is no indication of any foreign presence in the company — the only address shown is ’2A Montgomery Road, Yaba, Lagos’. The available evidence, therefore, points to this being an enterprise run by one proprietor/managing partner providing real estate related services from an office in Lagos. There is no adequate evidence that this is a registered company or that it does business internationally or has any international presence.”

Agubata took his appeal to the Court of Appeal, arguing that given the lack of definition of international company in the guidance it was unfair not to allow him to rely on the company as his sponsor. He argued that in any event, the guidance was not binding as to who could be a financial sponsor, relying on Pankina v SSHD [2010] EWCA Civ 719.

Pankina is the seminal decision of the Court of Appeal which made the important distinction between Immigration Rules and Policy Guidance. It said there that Policy Guidance do not have the same status as Immigration Rules because they do not meet the same critical test by which Immigration Rules come into existence, where a minister lays them before Parliament for scrutiny. As a result, they do not enjoy Parliamentary authority and do not have the force of law.

Permission to Appeal was granted because the phrase “international company” did not form part of the Immigration Rules. A number of questions, one of them being what is the meaning of “an international company”, were set for the Court of Appeal to answer.

Agubata’s barrister argued 3 issues; firstly, that the sponsoring company was an international company, secondly the Pankina point, and thirdly the failure to address the appellant’s Article 8 rights.

The Court of Appeal refused to accept that, on the evidence, the company could be described as an international company. But it went on to consider the question of whether a company, even though it was established abroad, was a sound and reputable company capable of giving a dependable assurance of support.

The Court of Appeal accepted that the company in question had been providing adequate sponsorship for the appellant for some years and was prepared to continue to do so. It also accepted that the company had the necessary funds.

The Court then looked to the wording of the paragraph in question which stated that “10 points will only be awarded if the funds shown in the table below are available to the applicant”.

The Court emphasised the words that the applicant had to show that “the funds were available to the applicant” and said that this was the requirement in the Rules. The Court referred to cases which had dealt with a similar point in FA and AA (PBS: effect of Pankina) Nigeria [2010] UKUT 00304 (IAC) in which the available funds were in the appellant’s husband’s bank account whereas the guidance said that the funds must be in the appellant’s own name and/or in the names of her parents.

It also referred to CDS [PBS: 'available': Article 8] Brazil [2010] UKUT 00305 (IAC) in which the appellant had sponsorship from two doctors who were not her parents and in which the Upper Tribunal agreed that funds are ‘available’ to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated.

The Court of Appeal emphasised that, following Pankina, there is a clear distinction to be drawn between mandatory requirements contained in statutory rules and policy guidance. Policy Guidance should be applied in a flexible and common sense manner and with particular regard to the underlying purpose of the Guidance.

Just as in Pankina, the Court of Appeal emphasised that if the Home Office wanted to make a requirement mandatory so that a failure to comply with it means that an application must be dismissed, then the proper course is to include that requirement in the Immigration Rules rather than in policy guidance.

The Court of Appeal therefore accepted that the Guidance in question was simply guidance. The requirement for there to be an international company was not contained at the material time in the Immigration Rules. Therefore the guidance had to be interpreted flexibly.

The Court of Appeal concluded thus:

“It seems to me, therefore, that the Senior Immigration Judge in dismissing the appellant’s appeal simply upon the basis that the company was not an international company fell into the error of treating the guidance as though it was a mandatory enactment and in that respect made a material error of law. For that reason I would allow this appeal.”

This is an important decision by a senior court which crystallises the law as previously interpreted by the lower courts. In particular, it confirms that the Policy Guidance for Tier 4 students ought to be applied flexibly and in light of the full circumstances of the case.