Appeal Under Section 13(4)(b) Of The Tribunals, Courts And Enforcement Act 2007 By Irum Shah Nawaz And Others
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Malcolm,Lord Bracadale |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] CSIH 6 |
| Court | Court of Session |
| Date | 28 January 2016 |
| Docket Number | XA171/14 |
| Published date | 28 January 2016 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 6
XA171/14
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
in the APPEAL
under section 13(4)(b) of the Tribunals, Courts and Enforcement Act 2007
by
IRUM SHAH NAWAZ AND OTHERS
Appellants;
Act: Caskie; Drummond Miller LLP
Alt: McIlvride QC; Office of the Advocate General
28 January 2016
[1] In an application dated 9 October 2012 the appellants (who are citizens of Pakistan), sought leave to remain in the United Kingdom. The first appellant was the principal applicant. She sought leave as a tier 1 (entrepreneur) migrant. (Previously she enjoyed leave because of her status as a tier 4 student.) The other applicants were her husband and three children who applied as her dependants. To gain sufficient points under the applicable points-based system (PBS) in part 6A of the Immigration Rules, she had to show access to at least £200,000 for the purpose of investing in a business in the UK. On 16 March 2013 the application was refused on the basis that she had not complied with this requirement and thus had not gained sufficient points. The information supplied with the application showed that her husband held funds amounting to £202,000 in an account with Lloyds TSB, and that he promised to make it available to her. However she had not provided the required letter from the bank confirming that the funds were available to her.
[2] Appeals against this decision were refused by the First-tier Tribunal and then the Upper Tribunal. The matter comes before this court on the basis that the Upper Tribunal erred in law by disregarding the funds held by the husband. After the date of the application, but before its refusal, the funds were used to purchase a garage and petrol station business in Cowdenbeath. Counsel for the appellants submitted that there had been a failure to apply “a modicum of intelligence, common sense and humanity”; reliance being placed upon, inter alia, R v Secretary of State for the Home Department, ex parte Forrester [2008] EWHC 2307 and Mahad v Entry Clearance Officer [2010] 1 WLR 48.
[3] For the respondent it was submitted that the Upper Tribunal correctly concluded that there was no error in law in the decision of the First‑tier Tribunal. The fact that the funds were held by the principal applicant’s husband did not mean that she should be credited with the points necessary for qualification. Purchase of the business could not retrospectively cure this failure. In any event there was no finding in fact as to the purchase of the business. Among other decisions, reference was made to Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 and Patel and Others v Secretary of State for the Home Department [2014] AC 651.
The decisions to date
The Secretary of State’s decision letter of 16 March 2013
[4] The material supplied with the application included a letter to the principal applicant’s husband dated 9 October 2012 from Lloyds TSB confirming his bank account number and that, as at that date, there was a balance of £202,000. On the same date the husband signed a witnessed third party declaration on the solicitors’ headed notepaper and addressed to the UK Borders Agency to the effect that, in relation to his wife’s application for entrepreneurial status in the United Kingdom, he gave his “full consent to the application to use (his) funds in the United Kingdom.” After stating the details of his account and the balance of £202,000, he declared that his wife had his “full authority to access the sum of £200,000… upon request for use in the UK, for the purpose of investing in her business.”
[5] The Secretary of State was not satisfied that the applicant had provided the documents required to be awarded points for having access to £200,000. The relevant Immigration Rules stated that there should be a letter from the financial institution holding the funds, in this case Lloyds TSB, to confirm the amount of money available to the applicant. Among other things, the letter required to “confirm the amount of money provided to the applicant from any third party… that are held in that institution”: para 41 – SD(a)(i)(9). In the absence of such a letter from the bank, the Secretary of State was “unable to accept the funds from the third party that you are relying on.”
The decision of the First-tier Tribunal dated 8 November 2013
[6] The judge noted that the relevant part of the Immigration Rules required a letter from the bank stating, among other things, the applicant’s name, and the amount of money provided to the applicant from any third party along with their contact details. Evidence was led that the appellant had purchased a business in the United Kingdom. She could not remember when this was done, but thought it was in 2013. She did this because she was sure that her application would be allowed. She owned the business jointly with a partner, namely her sister-in-law. In her application she stated that no others were involved in the enterprise. This was explained on the basis that she may not have understood the technicalities of the matter. As for the requisite letter from the bank, she had asked for it, but “the system would not allow it to be produced.” Her solicitor accepted that the necessary document had not been produced.
[7] In reliance upon para 245AA of the rules and the decision of the Upper Tribunal in Rodriguez v Secretary of State for the Home Department [2013] UKUT 42, the submission was that the agency caseworker should have written requesting further information. The third party declaration made it clear that money was available. Her husband had the funds and he intended to work in the business. Given an opportunity to do so, the applicant could have provided the appropriate documentation.
[8] The First-tier Tribunal judge noted that the requirements in the relevant Immigration Rules were clear. The specified letter from the bank had not been provided, and, even at the time of the hearing before him, it remained unavailable. The explanation about the system not allowing it “seemed unlikely.” Para 245AA had no application where the specified document had not been submitted. The evidential flexibility policy discussed in Rodriguez expired on 30 June 2011 and therefore did not apply to this application. The check carried out as to the validity of an application referred to in Alam (cited earlier) was a preliminary check looking for obvious omissions, for example, no fee enclosed, no photographs supplied, or no signature at the end of a form.
[9] Given the purchase of the business, the judge had some sympathy for the appellant, though she would have known the risk involved. The appeal was refused on the basis that the relevant rules were clear and the application had failed to comply with them. There was no obligation on the respondent to request the missing information. In her evidence the appellant said that she had read the relevant guidance so she would have known what was required. The third party declaration did not fill the gap. It was noted that there was no article 8 claim, and no evidence to suggest that it was engaged.
The proceedings before the Upper Tribunal
[10] When granting leave to appeal, an Upper Tribunal judge commented that the critical document was the bank’s letter of 9 October 2012. The view was expressed that perhaps the case ought to have been considered under para 245AA(d)(iii)(1) of the rules: “… missing information… verifiable from… other documents submitted with the application”, given that the owner of the bank account was the principal applicant’s husband, co-applicant and co-appellant. The appellants’ hopes “should not be unduly raised”, but the view was taken that the grounds of appeal merited debate rather than summary refusal of permission.
[11] The same Upper Tribunal judge heard the appeal and issued his decision on 7 April 2014. The case was said to turn on para 245AA, not on any evidential flexibility policy. Permission to appeal had been granted on the basis that the decision maker should have applied para 245AA(d)(iii)(1), however the parties agreed that, as at the date of the decision, that provision had not been introduced. Reference had been made to a letter from the bank of 21 October 2013 (post-dating the original refusal of leave) which showed that by then the account had become a joint account, with a balance of £8,200. Counsel said that, at some unknown date, the account was transferred into joint names. The bulk of the money in the account had been used to purchase the business. The appellant had bought a genuine business. Counsel claimed that the “substance” of the rules had been met, with the case failing only “on a procedural basis”. As a result of timing issues, it had not been possible for the appellant to become a party to the account before the application was submitted. The funds should be treated as an asset of the marriage to which both spouses were entitled. The purchase of the business and the transfer of the account into joint names was “powerful evidence” that the appellant did have access to the necessary funds. Furthermore, notwithstanding the statutory exclusion against consideration of post-decision evidence (section 85A of the Nationality, Immigration and Asylum Act 2002) this evidence became admissible by applying the discretion afforded by para 245AA in so far as it afforded a discretion concerning documents “in the wrong format” – a phrase which should be given a broad interpretation. Had the appellant been contacted, the required document could have been supplied within seven working days. The Upper Tribunal should exercise the 245AA discretion. The Secretary of State should have exercised her discretion differently. The decision of the First-tier Tribunal should be reversed.
[12] For the Secretary of State it was submitted that the problem was not a formatting...
To continue reading
Request your trial
-
(1) Dharmeshkumar Bhupendrabhai Patel v The Secretary of State for the Home Department
...to remain to be jeopardised is a requirement (see, e.g., Raza at [33], Kaur at [39], and ISN v Secretary of State for the Home Department [2016] CSIH 6). 30 None of these cases suggests that it is sufficient if, in addition to knowing that a CAS has been withdrawn, the Secretary of State ha......