R Fayyaz Qureshi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 13 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1769 |
| Date | 13 November 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2012/1618 |
[2012] EWCA Civ 1769
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR CHRISTOPHER SYMONS QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Case No: C4/2012/1618
Mr Zaheer Ahmed appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is the renewed application of Mr Qureshi for permission to apply for judicial review of the decision of the Secretary of State for the Home Department whereby she decided that Mr Qureshi had failed to meet the requirements of Rule 245C of the Immigration Rules, which lays down a principle that persons seeking permission to remain in this case as a Tier 1 (General) Migrant have to establish their entitlement to 80 points. What is in dispute in this litigation are those points, I think some 40 points in question, which relate to Mr Qureshi's earnings.
For this purpose the Secretary of State's guidance sets out how an applicant should seek to establish his or her earnings for the purposes of gaining the necessary points for their application for permission to remain. In particular, what is said in this guidance is that two different types of supporting documents which will support one another are required, and it is well known that this is a requirement because of the danger of potential abuses in the provision of documents. So what is said is that earnings can be proven for these purposes by invoices, bank statements, auditors' reports, accounts and so forth, but two different types of such documents are required.
What the Secretary of State has said is that, although a certain amount of earnings are accepted, where there was a failure of verification by two separate means, the earnings in question were stripped out of Mr Qureshi's application and to that extent and to that extent only he was debited or deducted the necessary points in question.
What is submitted is that the Secretary of State has erred in law. That is a submission that has to be made for the purposes of seeking judicial review against her decision in requiring such corroborative material to a specific degree. The complaint is that, when regard is had to decisions of the courts in the cases of Pankina v SSHD [2011] QB 376 and to the Scottish case of Oke [2012] CSOH 50, it is submitted that it was an error of law for the Secretary of State to regard her guidance as though it contained rules of law which had to be fulfilled to the letter. It is submitted that the Secretary of State should have used her discretion or good sense to appreciate that, even if in certain respects the letter of the requirements of her guidance was not met, nevertheless it had been met in spirit so to speak and that there was, in accordance with the spirit of the guidance, sufficient overall proof and verification of Mr Qureshi's earnings to make it an error of law for the Secretary of State to have refused this application on the ground of insufficient verification and therefore insufficient points towards his necessary 80.
This application for judicial review came originally before Mr Christopher Symons QC, sitting as a deputy High Court judge. See his judgment of 14 June 2012: [2012] EWHC 2068 (Admin)
It is clear from the material before me and from the learned Deputy Judge's judgment that the difficulty for Mr Qureshi is that none of the categories of verification, let alone two cross-verifying categories, were...
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