R (on the application of Wang and another) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Briggs,Lord Kitchin,Lord Burrows,Lady Rose,Sir Declan Morgan |
| Judgment Date | 21 June 2023 |
| Neutral Citation | [2023] UKSC 21 |
| Court | Supreme Court |
Lord Briggs
Lord Kitchin
Lord Burrows
Lady Rose
Sir Declan Morgan
Appellant
Sir James Eadie KC
Tom Cleaver
(Instructed by Government Legal Department (Immigration))
Respondent
Rupert D'Cruz KC
Ramby de Mello
Alexander Bryant
(Instructed by Jackson & Lyon LLP)
Heard on 4 May 2023
Lord Briggs ( with whom Lord Kitchin, Lord Burrows, Lady Rose and Sir Declan Morgan agree):
This appeal concerns the eligibility for leave to remain under the Tier 1 (Investor) Migrant regime. In particular it relates to an individual who (among over 100 others) has subscribed to a scheme designed to ensure qualification for leave to remain as a Tier 1 (Investor) Migrant in return for a payment of £200,000. However, the Secretary of State has refused leave to remain on the basis that she did not consider that the individual's participation in the scheme qualified her for leave to remain.
The principal issue on this appeal is the meaning of the phrase “money under his control” in the context of its use in paragraph (b)(ii) of box 1 in Table 8B in Appendix A to the Immigration Rules (as in force on 22 December 2017), and the application of that meaning to the facts as found by the courts below. In Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16; [2022] AC 691, para 13, (“ Rossendale”) this court approved as a general principle of statutory construction the following dictum of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 52 (2003) 6 ITLR 454, para 35:
“the driving principle in the Ramsay line of cases continues to involve a general rule of statutory construction and an unblinkered approach to the analysis of the facts. The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.”
At para 14 of Rossendale this court went on to observe that, although Ribeiro PJ spoke of a transaction, his dictum was equally applicable to other fact sets to which the relevant statutory provision referred. In the present case the phrase “money under his control” has to be applied to money loaned to the Respondent, Ms Jie Wang, under a scheme designed to secure for her a right to remain in the UK under the Immigration Rules.
A first threshold question on this appeal is whether that general principle of statutory construction applies also to the Immigration Rules which, although dependent upon Parliamentary approval by the negative resolution procedure, are in substance a statement of policies by the Secretary of State for the Home Department (the Appellant) as to the conditions which she will apply in the determination of applications for (inter alia) leave to remain.
In the context of tax avoidance schemes which depend upon a series of steps planned in advance the same general requirement to take an unblinkered and realistic approach to the analysis of the facts requires that the scheme be considered as a whole, rather than just to consider each step individually: see again Rossendale at paragraph 12 and the cases there cited.
A second threshold question on this appeal is whether that “in the round” appraisal of the scheme is required or even permitted when applying the points-based system of qualification for leave to remain, available to Tier 1 (Investor) Migrants, as the Respondent claims to be. She submits that such an “in the round” approach is irreconcilable with what she calls the “tick-box” structure of this part of the Immigration Rules, designed as they were to bring transparency and predictability to this part of the immigration regime, and to be capable of being operated quickly and reliably by junior Home Office officials without having to conduct a complex investigation into the surrounding facts.
For the reasons which follow I consider that both those threshold questions should be answered in the affirmative. When therefore those principles are applied to Ms Wang's case they lead me to the clear conclusion that the terms and realistic operation of the scheme by which she sought to qualify as a Tier 1 (Investor) Migrant did not have the result that the £1m lent to her pursuant to the scheme was “money in [her] control”, so that she failed to obtain the 30 points she needed under box 1 of Table 8B.
The applicable Immigration Rules contain a concise statement of the general policy or purpose behind the Tier 1 (Investor) Migrant regime. Rule 245E, headed “Purpose” states that:
“This route is for high net worth individuals making a substantial financial investment to the UK”
Rule 245ED, headed “Requirements for leave to remain” states:
“To qualify for leave to remain as a Tier 1 (Investor) Migrant, 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.”
There then follow a list of requirements, of which the following are relevant:
“(b) The applicant must have a minimum of 75 points under paragraphs 54 to 65-SD of Appendix A.
[…] (e) The applicant must be at least 18 years old and the assets and investment he is claiming points for must be wholly under his control.”
In Appendix A, under the heading “Attributes for Tier 1 (Investor) Migrants” the text in paragraphs 54 to 57 guides the reader to Tables 7, 8A or 8B, depending upon the dates when the applicant made the relevant applications. In Ms Wang's case it is Table 8B which is applicable. It provides as follows, so far as is relevant:
| Money and Investment | Points |
| The applicant: (a) has money of his own under his control in the UK amounting to not less than £1 million, or (b) (i) owns personal assets which, taking into account any liabilities to which they are subject, have a value of not less than £2 million, and (ii) has money under his control and disposable in the UK amounting to not less than £1 million which has been loaned to him by a UK regulated financial institution. | 30 |
| The applicant has invested not less than £750,000 of his capital in the UK by way of UK Government bonds, share capital or loan capital in active and trading UK registered companies, subject to the restrictions set out in paragraph 65 below and has invested the remaining balance of £1,000,000 in the UK by the purchase of assets or by maintaining the money on deposit in a UK regulated financial institution. | 30 |
| The investment referred to above was made: (1) within 3 months of the applicant's entry to the UK, if he was granted entry clearance as a Tier 1 (Investor) Migrant and there is evidence to establish his date of entry to the UK, unless there are exceptionally compelling reasons for the delay in investing, or (2) […] | 15 |
As is apparent, an applicant under this part of the regime has to score the full points under all three boxes to qualify for leave to remain.
There are two relevant qualifications. The first is in paragraph 61A:
“In Tables 7 to 9B, ‘money of his own under his control’ and ‘money under his control’ exclude money that a loan has been secured against, where another party would have a claim on the money if loan repayments were not met, except where: […]”
The second is in paragraph 65:
“Investment excludes investment by the applicant by way of:
(a) […]
(b) Open-ended investment companies, investment trust companies, investment syndicate companies or pooled investment vehicles.”
Standing back, Table 8B offers an applicant two types of financial route to qualification as a high net worth individual. The first is having “money of his own” in the UK of not less than £1m. The second is having offshore net assets of not less than £2m, plus loaned money in the UK of not less than £1m. In both cases the money must be under the applicant's control, and the assets must be wholly under the applicant's control. There is an issue whether “assets” in rule 245ED(e) also includes money, but in my view, as I shall explain, nothing turns on that.
Ms Wang chose the second of those two routes. It is to be assumed (in the sense that the Secretary of State has not challenged it) that Ms Wang satisfied the offshore net worth requirement in paragraph (b)(i) of box 1 in Table 8B. She sought to satisfy the onshore loaned money requirement in paragraph (b)(ii) by paying £200,000 for entry into the Maxwell Scheme. She was one of over 100 aspiring Tier 1 (Investor) Migrants to do so. The scheme involved her making agreements (in standard non-negotiable form) with three companies, all wholly owned and controlled by two Russian nationals, Dimitry Petrovich Kirpichenko (“DK”) and his wife Nika Kirpichenko (“NK”). The three companies were to be, respectively, the lender, service provider and investee under the Maxwell Scheme. The first was Maxwell Asset Management Ltd (“MAM”), a UK-registered company regulated by the FCA and which qualified as a UK regulated financial institution under paragraph (b)(ii) in box 1 of Table 8B. The second was Maxwell Holding Ltd (“Holdings”) a Jersey-registered company which was MAM's parent company. The third was Eclectic Capital Ltd, (“Eclectic”).
The first agreement (“the MAM Loan Agreement”) was made between MAM and Ms Wang on 23 October 2013. It provided for a £1m facility for a term of 5 years at a fixed interest rate of 3% per annum. The purpose of the facility was described as being “to enable the Borrower to meet the requirements of the UKBA Visa Tier 1 (Investor)” and to be used “for AID” (or “Authorised Investment Destination”), which...
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Upper Tribunal (Immigration and asylum chamber), 2023-08-07, UI-2022-003302
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