R (on the application of Muhammad Jalal Junied) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Davis |
| Judgment Date | 20 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2293 |
| Docket Number | Case No: C6/2018/2812 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2293
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION
AND ASYLUM CHAMBER
HHJ EYRE QC (sitting as a judge of the Upper Tribunal)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Lord Justice Simon
Case No: C6/2018/2812
Mr Richard Singer (instructed by Sabz Solicitors LLP) for the Appellant
Mr Zane Malik (instructed by the Government Legal Department) for the Respondent
Hearing date: 10 December 2019
Judgment Approved by the court for handing down
Introduction
This case involves consideration of aspects of the Points-Based System (“PBS”) relating to applications for leave to remain as Tier 1 (Entrepreneur) Migrants. In essence, what is said is that a particular requirement of the scheme, as contained in paragraph 41-SD(c) of Appendix A to the Immigration Rules, has proved impossible of fulfilment by the applicant; that in consequence the decision-making process on the part of the respondent Secretary of State was unfair and unreasonable; and that the decision of the Secretary of State to refuse the applicant further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant should accordingly be quashed. In the alternative, it is sought to be argued, by a ground of appeal added by amendment, that the relevant requirement of the PBS is ultra vires.
The application for permission to appeal was directed by McCombe LJ on 28 May 2019 to be adjourned to an oral hearing, with the appeal to follow forthwith if permission was granted. The application came before us on that basis. We invited full argument from Mr Richard Singer, appearing for the applicant, and from Mr Zane Malik, appearing for the respondent: and I would like to acknowledge their careful and thorough submissions, both written and oral, presented to us.
I would formally grant permission to appeal. But, for consistency, I will continue to refer to “the applicant”.
The Points-Based System
In order to make sense of the course of events and of the competing arguments, I think that it is convenient first to outline the relevant parts of the PBS relating to Tier 1 (Entrepreneur) Migrants.
Section 3(2) of the Immigration Act 1971 empowers the Secretary of State to lay before Parliament rules restricting the entry into and stay in the United Kingdom of persons required to have leave.
As part of the (highly complex) Immigration Rules that have been made and amended from time to time, paragraph 245DD sets out requirements for those seeking leave to remain as Tier 1 (Entrepreneur) Migrants. That paragraph states at the outset that in order to qualify:
“… an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
It is to be noted that the language is entirely prescriptive.
Of the listed requirements, one is that an applicant “must have” a minimum of 75 points under paragraphs 35 to 53 of Appendix A (see paragraph (b)). Paragraph 35 of Appendix A stipulates that an applicant must score 75 points for Attributes. By paragraph 36, the available points are shown in Table 4. Table 4 includes, among other things, a score of 25 points if the applicant “has access to not less than £200,000”; and further points are scored if other Attributes are met.
Paragraph 41(a) of Appendix A stipulates, in the relevant respects, that an applicant will only be considered to have access to funds if the documents specified in paragraph 41-SD are provided.
Central to this appeal are the requirements of paragraph 41-SD of Appendix A, and in particular, for present purposes, paragraph 41-SD(c). That, in the relevant respects, provides as follows:
“(c) The specified documents to show evidence of the funding available to invest, whether from the applicant's own funds or from one or more third parties, are one or more of the following specified documents:
(i) A letter from each financial institution holding the funds, to confirm the amount of money available. Each letter must:
(1) be an original document and not a copy,
(2) be on the institution's headed paper,
(3) have been issued by an authorised official of that institution,
(4) have been produced within the 31 days immediately before the date of application,
(5) confirm that the institution is regulated by the appropriate body,
(6) state the applicant's name, and his team partner's name where relevant,
(7) show the account number and,
(8) state the date of the document,
(9) confirm the minimum balance available from the applicant's own funds (if applicable) that has been held in that institution during a consecutive 90-day period of time, ending on the date of the letter,
(10) for money being held by a third party at the time of the application and not in the possession of the applicant, confirm that the third party has informed the institution of the amount of money that the third party intends to make available, and that the institution is not aware of the third party having promised to make that money available to any other person,
(11) confirm the name of each third party and their contact details, including their full address including postal code, telephone contact number and any email address; and
(12) confirm that if the money is not in an institution regulated by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA), the money can be transferred into the UK …”
There are also other detailed requirements but I need not set them out for present purposes. In fact the focus in the present appeal has been on the requirement set out in (c)(i)(10): although, as will be appreciated, there are other requirements as well.
The rationale underpinning paragraph 41-SD(c) is plain enough. The presence within the United Kingdom of appropriately qualified migrants with sufficient funding for their planned business activities is in general, as Parliament has decided, to be encouraged. But experience also teaches that there is a risk of abuse. One selected method of mitigating such a risk – plainly a rational method – is to ensure the provision of confirmation of the availability of the required amount in specified terms: and such confirmation is required to be from a financial institution which is a regulated body and in the form of an original letter emanating from an authorised official of that body.
Various aspects of the PBS contained within the Immigration Rules have been the subject of court decisions over the years. The prescriptive and inflexible nature of the PBS has been the subject of much judicial discussion and comment (indeed it has been the prescriptive and inflexible nature of the scheme in question in any given case which has usually given rise to the particular litigation in the first place).
As noted by Lord Hope in paragraph 42 of his judgment in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2228:
“… The introduction of the points-based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended …”
At paragraph 2 of his judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, Lord Wilson noted that Parliament had decided that a points-based system was the optimum mechanism for achieving management of immigration control: notwithstanding his own stated reservations about the harsh results that could sometime occur in particular cases. As further noted by Underhill LJ at paragraph 56 of his judgment in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65, [2018] 4 WLR 55, after he had reviewed a number of the authorities:
“… The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process …”
Thus the whole tenor of the many authorities (and I do not need to refer to all of them) is that the PBS is designed to achieved predictability, consistency, administrative simplicity and certainty and does so by being prescriptive, at the expect of discretion.
This rigour of approach has also been consistently followed, in the context of the PBS, with regard to any stipulated requirements imposed on an applicant in obtaining and providing documents in the specified form. For example, in the case of Alam v Secretary of State for the Home Department [2012] EWCA Civ 966, (a case involving Student Migrants), it was stated by Sullivan LJ at paragraph 35, after he had referred to the relevant rules and policy guidance:
“… all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. … [Counsel] referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion.”
In the Upper Tribunal case of Durrani v Secretary of State for the Home Department [2014] UKUT 00295 (IAC) the main issue was whether the applicant had produced requisite bank letters to show that he had access to the then required sum of £50,000 for the purposes of a Tier 1 (Entrepreneur) Migrant application, under the provisions of paragraph 41-SD(a). At paragraph 12 of its decision the Upper Tribunal said this:
“All of the requirements listed in paragraph...
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