Upper Tribunal (Immigration and asylum chamber), 2014-07-01, IA/26749/2013
| Jurisdiction | UK Non-devolved |
| Date | 01 July 2014 |
| Published date | 22 August 2014 |
| Hearing Date | 19 May 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/26749/2013 |
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26749/2013
THE IMMIGRATION ACTS
|
Heard at North Shields |
Determination Promulgated |
|
On 19 May 2014 |
On 1 July 2014 |
|
|
|
Before
Deputy Upper Tribunal Judge Pickup
Between
Secretary of State for the Home Department
Appellant
and
Hari Krishnan
[No anonymity direction made]
Claimant
Representation:
For the claimant: Mr A Vaughan, instructed by AK Solicitors LLP
For the respondent: Ms H Rackstraw, Senior Home Office Presenting Officer
DECISION AND REASONS
-
The claimant, Hari Krishnan, date of birth 12.1.84, is a citizen of India.
-
The Secretary of State appealed against the determination of First-tier Tribunal Judge Duff, who allowed the appeal against the decision of the respondent, dated 14.6.13, to refuse to vary leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant. The appeal was allowed on the basis that the decision was not in accordance with the law and breached the appellant’s rights under article 8 ECHR. The Judge heard the appeal on 28.10.13.
-
First-tier Tribunal Judge Chohan granted permission to appeal on 17.1.14.
-
Thus the matter came before me on 31.1.14 as an appeal in the Upper Tribunal. I heard submissions and reserved my decision on error of law, which was promulgated to the parties on 18.2.14. I found an error of law in the making of the decision of the First-tier Tribunal such that it should be set aside and remade in its entirety.
-
The remaking of the decision was then listed before me on 19.5.14.
-
At the outset of the hearing before me on 19.5.14, Mr Vaughan sought to reopen the error of law decision. The decision of the First-tier Tribunal having already been set aside, I declined to reopen the error of law decision.
-
The matter was heard with the linked appeal of Mr Abdul Basher Shamin & others, IA/26687/2013. Mr Shamin is the claimant’s Tier 1 (entrepreneur) team partner. There were two separate decisions of the First-tier Tribunal and I am asked to draft separate decisions, though the reasoning will largely be the same, as they were in the respective determinations of Judge Duff.
-
For the reasons set out herein, I found that there were a number of errors of law in the making of Judge Duff’s decision, such that the determination should be set aside and remade. I attach as an annex to this determination my error of law decision.
-
In summary, I found that the First-tier Tribunal:
-
Wrongly took into account evidence not submitted with the application;
-
Wrongly dispensed with the requirements of paragraph 41-SD in relation to PBS specified evidence; and,
-
Was in error to find that there was an obligation on the Secretary of State to seek missing information as part of an evidential flexibility policy (or under paragraph 245AA);
-
Was in error in the article 8 assessment to consider that the interference with family life was not necessary for the enforcement of immigration policy and misunderstood and misapplied the proportionality balancing exercise;
-
Wrongly applied a near-miss approach to the requirements of the Immigration Rules.
-
-
I heard submissions from the representatives of both parties, received Mr Vaughan’s skeleton argument, and reserved my determination on the remaking of the decision in the appeal, which I now give.
-
Whilst Mr Vaughan represented both the Shamim family claimants and this claimant, Mr Krishnan, the whole of his skeleton argument and most of his submissions related exclusively to the particular circumstances of the Shamim family and in particular the argument that one or both children were entitled to remain in the UK and thus the parents derived a right to remain under article 8 to care for that child and the other child must also remain with the family.
-
For reasons given in my determination in appeal IA/26687/2013, I have found that the claimants Mr Shamim and his wife and two children failed to demonstrate that they met the requirements of the Immigration Rules for leave to remain as a Tier 1 Entrepreneur and dependents. Their appeals were also dismissed under human rights grounds.
-
Mr Vaughan did not seek to argue that Mr Krishnan met the requirements of the Immigration Rules. However, he submitted that the following factors gave rise to entitlement to remain on the grounds of private life under article 8 ECHR:
-
The length of residence in the UK, since 2008;
-
The time and effort put into setting up, developing and running the business;
-
A positive contribution to the community in establishing two full-time positions for employees of the business;
-
The social and business ties that would be lost in having to leave the UK;
-
A contribution of real value to the community and the country;
-
That his economic contribution in permitting him to remain is greater than the public interest in protecting the economic well-being of the UK by immigration control.
-
-
Without needing to set out the reasons afresh, it follows from my error of law decision that this claimant did not meet the requirements of the Immigration Rules for leave to remain as a Tier 1 Entrepreneur, as set out at §9 of that decision.
-
In particular he, along with his entrepreneurial team partner failed to comply with the specified evidence requirements of paragraphs 41 and 41-SD of Appendix A of the Immigration Rules.
-
Since the hearing before me, there have been a number of further relevant decisions of the Upper Tribunal in relation to PBS cases.
-
In Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 00295 (IAC), the Upper Tribunal held:
(1) The requirements listed in paragraph 41-SD(a)(i) of the Rules are to be construed reasonably and sensibly, in their full context. Approached in this way, the letters required from banks or other financial institutions are not designed to provide, and do not commit them to, any form of guarantee or assurance to any party. Rather, the function of the prescribed letters is to attest to the state of the relevant bank account on the date when they are written and to provide certain other items of information designed to confirm the authenticity of the application for entrepreneurial migrant status and its economic viability. There is no difficulty in the third party bank, with its customer’s consent, expressing its understanding, based on the customer’s instructions, that the use of specified funds in the customer’s bank account/s is contemplated or proposed by the customer for the purpose of financing the applicant’s proposed business venture. Accordingly, there is no substance in the argument that the relevant requirements contained in paragraph 41-SD(a)(i) produce an absurd result and must, therefore, be interpreted in some other manner.
(2) The question of whether a policy exists is one of fact. There is no evidence that some policy on evidential flexibility, independent and freestanding of paragraph 245AA, survived the introduction of that paragraph in the immigration rules.
-
In Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 00297 (IAC), the Upper Tribunal Tribunal held that a bank letter, which does not specify the postal address, landline telephone number and email address of the account holders is not thereby “in the wrong format” for the purposes of paragraph 245AA of the immigration rules (documents not submitted with applications).
-
In relation to the issues in this appeal, it is clear that no flexibility policy survived the introduction of paragraph 245AA and that that limitations of that paragraph cannot be expanded to include defective documents as being in the wrong format. The above case authorities entirely support my error of law decision in relation to the application of evidential flexibility set out between §14 and §33 of that decision.
-
As explained in the error of law decision, under section 85A(4) of the 2022 Act the tribunal can only consider evidence which was submitted in support of and at the time of making the application to which the immigration decision related. Neither paragraph 245AA nor any other evidential flexibility policy could assist the claimant’s failure to comply with the specified evidence requirements, or permit the consideration of evidence submitted later. In the circumstances, the application and the appeal have to considered in the light of the evidence and documents submitted at the time of the application.
-
For the reasons set out in the error of law decision, without needing to repeat them further here, it is clear that the claimant does not meet the requirements of the Immigration Rules for leave to remain as a Tier 1 entrepreneur and his appeal in that regard must fail. Mr Vaughan made no submissions to the...
To continue reading
Request your trial