FB (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWCA Civ 214 |
| Docket Number | Case No: C5/2014/3949 |
| Date | 28 January 2016 |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 214
IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Case No: C5/2014/3949
Ms B. Jones (instructed by KA Solicitors) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
(Approved by the court)
No of words: 1436
No of folios: 20
This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.
The applicant is a national of Pakistan who came to this country in July 2007 with leave to remain as a student until 31 October 2010. His leave was subsequently extended to 8 September 2012. On 7 September 2012 the applicant applied to vary his leave in order to remain here as an entrepreneur migrant under the points-based system. He said that he had access to at least £200,000 from his uncle to invest in a business in the United Kingdom.
By a decision dated 1 May 2013 the Secretary of State rejected his application and made a decision to remove him from the UK on the grounds that he had failed to comply with paragraph 41-SD of appendix A to the Immigration Rules. That paragraph requires an applicant who seeks leave to remain as an entrepreneur to provide in support of his application various specified documents, including (1) a letter from an approved financial institution confirming that funds are available to him; (2) in a case where the funds which are to be invested in the business are to be provided by a third party, a letter from that third party confirming that the funds are available to the applicant; and (3) a letter from a legal representative confirming the signature of the third party and the genuineness of his letter.
In the present case the letter from the bank did not confirm that it held funds to the order of the applicant, nor did it confirm that funds were available from a third party whose contact details were then set out. Moreover, the applicant had failed to provide a letter from a legal representative confirming that the letter from the third party was indeed genuine.
The applicant appealed against the rejection of his application on the grounds that the Secretary of State had failed to apply the evidential flexibility policy now enshrined in paragraph 245AA of the Immigration Rules. He also argued that the Secretary of State had failed to give proper consideration in respect of his right to respect for his family and private life under article 8 of the European Convention of Human Rights.
The First-tier Tribunal allowed his appeal on the grounds that the Secretary of State had failed to ask the applicant whether he could supply the missing documents and had thus failed to apply her evidential flexibility policy. However, it rejected his appeal insofar as it was based on article 8. The tribunal remitted the matter to the...
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