The Secretary of State for the Home Department v Parvaiz Akhter & Anor

1. These two appeals have been conjoined from the outset as they arise out of the same facts and circumstances. They were heard in tandem with two other appeals, namely the cases of Fayyaz and Durrani , Fayyaz (Entrepreneurs: paragraph 41-SD(a)( i ) – “provided to”) [2014] UKUT 00296 (IAC) and Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 00295 (IAC) as all of these cases raise certain comparable issues relating to the proper construction of those provisions of the Immigration Rules regulating the acquisition of what is known as Tier 1 (Entrepreneur) Migrant Status (described hereinafter as “ entrepreneurial migrant status ”). The relevant provisions of the Immigration Rules are appended hereto.

2. Whereas the Secretary of State for the Home Department (“ the Secretary of State ”) is the appealing party, we shall, in the interests of convenience and consistency, replicate the nomenclature of the decision at first instance.

3. Parvaiz Akhter and Chandni Maqbool (hereinafter “ the Appellants ”) are nationals of Pakistan, aged 31 and 33 respectively. They applied, unsuccessfully, to the Secretary of State for entrepreneurial migrant status. Their ensuing appeals to the First-tier Tribunal (“ the FtT ”) were allowed. The Secretary of State appeals, with permission, to this Tribunal.

4. From December 2009 and February 2010 the Appellants, in turn, have been lawfully present in the United Kingdom, having the status of Tier 4 (General) Student. On 12 December 2012 they made a combined application to the Secretary of State for Entrepreneurial Migrant Status. They were proposing to operate a business enterprise jointly. Accompanying and forming part of their application were several documents. These included in particular the following: (a) A letter dated 05 December 2012 from the HBL Bank of Lahore, certifying that two named persons had a current account in the bank with a credit balance of a specified amount which was “ available at all times and transferrable anywhere including UK ” on request of the customers. It further confirmed the identity of the relevant authorised state financial institution and enclosed a statement of account. (b) A Declaration (or affidavit) identifying and signed by the two bank customers confirming a credit bank balance of approximately £260,000, describing the Appellants as “ family friends ” and affirming the availability of £200,000 to the Appellants “ to set up business in UK ”. (c) An accompanying written confirmation signed by a Lahore lawyer.

5. During the period of the next four months, the UK Border Agency (“ UKBA ”) corresponded twice with one of the Appellants. The first letter intimated that with effect from 30 January 2013 the Immigration Rules had been revised by the introduction of a genuine entrepreneur test and a requirement for applicants to hold the necessary minimum funds, or invest them in the relevant business, on a continuing basis, applicable to all applications, including those submitted prior to the operative date. The purpose of these revisions was described as to “…. e nsure that abuse of this route is tackled so that we can continue to attract the brightest and the best ”. In the second of the two letters, written approximately one month later, the Appellant Ms Maqbool was requested to attend an interview at a specified time, date and place. This Appellant’s witness statement and the letter combine to confirm that the interview was conducted on 28 May 2013. This Appellant asserts: “ In the interview I submitted a further letter from HBL Bank with a Declaration and letter from Law Associates. I also explained to the interviewer that I was receiving the funds from my father’s friend in Pakistan, who wanted to invest in business in the UK. ” Chronologically, the next material development was the Secretary of State’s refusal decision, contained in a UKBA letter dated 18 June 2013.

6. In common with the Appellants in the related appeals and, indeed, every applicant for entrepreneurial migrant status, it was necessary for these Appellants to score 75 points in respect of “ attributes ”. This is not in dispute. It is also common ground that the minimum funding to which they had to demonstrate access was, in their particular case, £200,000. Further, they had to achieve 10 points in respect of the English language requirement and 10 points in respect of the maintenance (funds) requirement: they did so and nothing turns on this.

7. We turn to examine the Secretary of State’s refusal decision. Having made reference to the three documents which we have highlighted in [4] above, the letter continues: “ However, the bank letter is not acceptable because it does not state your name and the name of your entrepreneurial team partner. Furthermore, no contact details for the third party were given. The bank letter must confirm the third party’s contact details, including their full address including postal code, landline phone number and any email address. In accordance with paragraph 41 of Appendix A of the Immigration Rules, you are therefore not considered to have access to the funds that you have claimed. ” As a result, the Appellants’ claim for 25 points was allocated a score of 0 points. Consequentially, their further claims for 25 points in respect of “ funds held in regulated financial institution ” and 25 points in respect of “ funds disposal in the United Kingdom ” were also refused. This was described in argument as the “domino” effect. Thus they scored 0 points instead of the requisite 75.

8. The appeal to and resulting decision of the FtT ensued. As in the related Durrani case, the first ground of appeal advanced was that paragraph 41-SD(a) of the Immigration Rules did not govern the Appellants’ application. Rather, it was governed only by paragraph 41-SD(b). We pause to observe that on appeal to this Tribunal this argument was no longer pursued. The alternative argument, which was maintained before us, was that if the application was governed by paragraph 41-SD(a)(i), the sixth of the 11 listed requirements could not be satisfied and was, hence, absurd. This alternative, second ground of appeal, was based on certain contentions concerning the relationship of banker and customer.

9. The FtT rejected the first ground of appeal. With regard to the second, alternative ground, the Judge, having made reference to requirements (6) and (9) in paragraph 41-SD(a)(i), stated in [10]: “ Providing the bank has its customer’s authority to do so, then I see no reason why this would be impermissible. Indeed, that is precisely what happened after the date of the decision; the Appellant’s bundle includes a letter from the Manager of Habib Bank dated 28 June 2013 ……………. ” It was common ground, both at first instance and upon the hearing of this appeal, that the Appellants could not rely on this letter, by virtue of section 85 A of the Nationality, Immigration and Asylum Act 2002 , as it postdates the impugned decision. However, this Tribunal was invited to take it into account in its consideration of the construction issues. As noted by the FtT, it post dates the Secretary of State’s decision. It is addressed “ for the attention of the UK Border Agency ” and states in material part: “ In regards to the Tier 1 application of [the Appellants] …… We have the consent of [Mr S and Mrs G] to share these findings … We confirm that from 04/12/2012 to 28/06/2013 [Mr S and Mrs G] have £259,740.52 available for investment in a business in the United Kingdom on deposit with this financial institution. We have been informed by our customer that all of these funds are available for investment in the United Kingdom for the above mentioned [Appellants] business ….. Habib Bank Limited is regulated by the State Bank of Pakistan ….. The sum of £200,000 is freely disposable/transferrable to the United Kingdom at the discretion of our customer. ” This letter also specified the postal address, phone number and email address of the Bank’s customers.

10. Thus the FtT rejected both the primary and alternative grounds of appeal. However, the appeal was allowed. The Judge reasoned that the Secretary of State’s decision was not in accordance with the law having regard to the principle of fairness and a failure to give effect to the “evidential flexibility” policy. Permission to appeal to this Tribunal was granted to the Secretary of State on the basis that the FtT had arguably erred in law in thus holding. The Appellants, by the mechanism of a Rule 24 notice ( qua Respondents), raised before this Tribunal the absurdity argument which had been rejected by the FtT.

11. In common with the other, related appeals, the centrepiece of the arguments developed before this Tribunal was that the Secretary of State’s decision was not in accordance with the law as it was based on a literal construction of certain aspects of paragraph 41-SD(a)(i) of the Rules which generates absurd results. As in the other cases, the Appellants’ arguments focused on requirements (6), (9) and (10). The absurdity arguments are rehearsed in our determinations in the other two appeals and we do not repeat them here.

12. In this appeal, the focus of attention is the Habib Bank letter of 05 December 2012. Juxtaposing this letter with the table of requirements in paragraph 41-SD(a)(i) of the Rules, we consider that this letter suffered from two defects. First, it did not state the names of the Appellants. Second, it did not specify the postal address, landline phone number and any email address of the account holders. Thus the letter was non-compliant with requirements (6) and (10). Our analysis is that it was compliant with all of the other nine requirements. This analysis is duly reflected in the Secretary of State’s refusal decision.

13. We consider that the two failures which we have identified cannot be attributed to any absurdity or anomaly in the requirements of the Rules under scrutiny. We reject the Appellants’ arguments that in order to avoid absurdity, it is necessary (a) to substitute the words “ account holder’s ” for “ applicant’s ” in requirement (6), deleting the remaining words and (b) to substitute “ account holder ” for “ third party ” in requirement (10). We have set out in our decision in the Durrani appeal our reasons for thus concluding. We would add that, in our judgement, this appeal raises no further issue in relation to the words “ provided to ” in requirement (9) since the bank later (as noted above) stated unequivocally that the necessary funds were “ available at all times and transferable anywhere including UK on his [ie the customer’s] request .” We would, in any event, repeat the construction of “ provided to ” which we have espoused in Fayyaz : see [28]. This disposes of the issues raised in the Rule 24 Notice of the Appellants ( qua Respondents).

14. We turn to address the issue raised in the Secretary of State’s appeal, which is whether the FtT erred in law in allowing the Appellants’ appeals on the ground noted in [10] above. As the FtT recognised in [18] and [19] of its determination, the effect of this finding was that the Secretary of State had not made a lawful decision and was, in consequence, under a duty to do so. In [14], the Judge noted, correctly, that paragraph 245AA of the Immigration Rules had been introduced with effect from 06 September 2012. The determination of the Appellants’ application postdated this, on 18 June 2013. It is common ground that paragraph 245AA applied to this application. Paragraph 245AA was at that time in the following terms: “245AA. Documents not submitted with applications (a) Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b). (b) If the applicant has submitted: (i) A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing); (ii) A document in the wrong format; or (iii) A document that is a copy and not an original document, the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request. (c) The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons. (d) If the applicant has submitted a specified document: (i) in the wrong format, or (ii) that is a copy and not an original document, the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).” The next step in the Judge’s analysis was to refer to two documents appended to the decision of the Upper Tribunal in Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC) . These are the “Evidential Flexibility Instruction” and the UKBA letter of 19 May 2011. The Judge stated in [15]: “ It is arguable that paragraph 245AA needs to be read in conjunction with the Evidential Flexibility instructions and the UKBA’s letter of 19 May 2011….. There is no explicit indication that the policy has been withdrawn and it is perfectly possible for policy and rules to co-exist ….. ” [Our emphasis] It is evident that the “ policy ” to which the Judge was referring was a combination of the two specified documents.

15. We consider that the Judge erred in law in assuming that this “policy” remained in existence following the introduction of paragraph 245AA and, hence, applied to the Appellants’ application. The question of whether a policy exists, in any given context, is a question of fact. There was no concession to this effect. Absent a concession, an evidential foundation for this finding was necessary. There was none. The contrary was not argued before this Tribunal. Furthermore, the additional evidence brought to the attention of the Court of Appeal in the Rodriguez case suggests that the documents in question had no enduring force or effect when paragraph 245AA of the Rules was introduced: see Secretary of State for the Home Department – v – Rodriguez and Others [2014] EWCA Civ 2 , [47] and [65]. The information contained in these passages, though not formally admitted in evidence by the Court of Appeal, was not challenged by the Appellants before this Tribunal. Finally, and in any event, the Court of Appeal reversed the Upper Tribunal’s finding that the documents under scrutiny constituted a new policy: see [87].

16. The conclusion that the FtT erred in law in allowing the appeals follows inexorably. Its decision must be set aside accordingly.

17. We proceed to re-make the decision of the FtT. The sole question is whether the Secretary of State’s refusal decision was not in accordance with the law by reference to paragraph 245AA of the Immigration Rules, which applied at the time when the Appellants’ joint application was determined. We have reproduced paragraph 245AA in [14] above. It provides that UKBA “ may ” request the applicant to supply “ the correct documents ” in any of three cases, that is to say where – (a) A document has been (or documents have been) omitted from a sequence of documents; or (b) A document is in the wrong format; or (c) A copy, rather than original, document has been furnished. See sub-paragraph (b).

18. The exercise of this discretionary power, or choice, is informed by sub-paragraph (c). We refer to our finding in [12] above that the material defects in the Appellant’s application were that the bank letter did not state the names of the Appellants and did not specify the postal address, landline phone number and any email address of the account holders. We are of the opinion that paragraph 245AA(b), accorded its ordinary and natural meaning, is not engaged in these circumstances. We consider that an application suffering from these shortcomings does not fall within any of the three categories. Accordingly, the Appellants cannot invoke paragraph 245 AA in support of a contention that they should have been given an opportunity to rectify the deficiencies in their application. It follows that the Secretary of State did not err in law in not offering this facility to them. Thus the decision of the FtT cannot survive. DECISION

18. We set aside the decision of the FtT and re-make same by dismissing the Appellants’ appeals. Thus we allow the Secretary of State’s appeal to this Tribunal. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 24 th May 2014 Appendix