IA249112012 & ors

These appellants appeal with permission against the dismissal of the principal appellant�s application to vary leave to remain as a Tier 4 (General) Student Migrant under the points-based system, and the appeals of her husband and two children against the decision not to vary their leave to remain as her dependents, in line with the principal appellant�s application. is the determination in the appeal of Mrs Jagrutiben Pankajkumar Chavda.

The accompanying decisions to remove the appellants under Section 47 of the Immigration, Asylum and Nationality Act 2006 are unlawful, as the Upper Tribunal held in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) Sri Lanka [2012] UKUT 414 (IAC) . Mr Nath accepts that the s.47 decisions cannot be sustained.

However, in relation to the refusal of the applications for leave to vary, there were two issues, the first being that the principal appellant�s CAS was not accompanied by the supporting evidence as it should have been. At paragraph 16 of the determination the judge found that the respondent had failed to apply the evidential flexibility policy and to call for the missing documents and that the appellant was entitled to succeed on that ground in relation to the certificate. There is therefore no issue on the CAS and the respondent has not filed a Rule 24 notice raising any issue on that point.

The appellant challenges the finding that an account in her husband�s sole name can not be prayed in aid. Again, the Rules are perfectly plain on this point and reliance on an account in her husband�s sole name is not permitted. The position thus remains that the appellant, when she submitted her application, did not submit evidence that she had the required sum of �4,300, and accordingly the immigration appeal cannot succeed.

Permission to appeal was also granted on Article 8 ECHR but that was not pursued in the skeleton argument before me. As noted in the grant of permission, the Article 8 claim was on any view a weak one since this family would be removed, if at all, together, and none of them are British or EU citizens.