IA020312014 & IA020362014

The claimants, Gurjeet Kaur, date of birth 4.8.89, and her husband Surjinder Singh, date of birth 20.8.87, are both citizens of India.

This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Sweet, who allowed the claimants� appeals against the decision of the Secretary of State, dated 20.12.13, to refuse their applications made on 16.4.13 for leave to remain in the UK as Tier 4 (General) Student Migrant and dependant spouse, and to remove them from the UK by way of directions under section 47 of the Immigration Asylum and Nationality Act 2006. The Judge heard the appeal on 13.6.14.

The application of the first claimant failed because she failed to qualify for the necessary 10 points under Appendix C in respect of maintenance funds. On the calculation of the Secretary of State, the claimant needed to demonstrate a total of �4,400 over a consecutive period of 28 days between 5.2.13 and 4.3.13. However, the submitted bank statement showed a maximum balance during that period of �4,201.04. The claimant therefore did not meet the requirements of paragraph 245ZX of the Immigration Rules. The appeal of the second claimant dependant husband stands or falls with that of his wife.

Judge Canavan carefully set out the evidence and submissions and at �17 of the determination noted that the claimant submitted 6 pages of bank statements and �there was therefore no indication to the respondent that there were any missing documents, namely consecutive bank statements, on which they should have sought further information pursuant to paragraph 245AA of the Immigration Rules.� The judge concluded within �17 of the determination that the Secretary of State was entitled to take the decision she did.

However, from �18 of the determination Judge Canavan went astray in the application of paragraph 245AA and application of an evidential flexibility policy.