Upper Tribunal (Immigration and asylum chamber), 2014-06-30, IA/26687/2013 & ors
| Jurisdiction | UK Non-devolved |
| Date | 30 June 2014 |
| Published date | 22 August 2014 |
| Hearing Date | 19 May 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/26687/2013 & ors |
Appeal Numbers: IA/26687/2013, IA/26699/2013, IA/26716/2013 & IA/26726/2013
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26687/2013
IA/26699/2013
IA/26716/2013
IA/26726/2013
THE IMMIGRATION ACTS
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Heard at North Shields |
Determination Promulgated |
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On 19 May 2014 |
On 30 June 2014 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Secretary of State for the Home Department
Appellant
and
Abdul Basher Mohammed Shamim
Hosne Ara Begum
Anika Mubashsira Bushra
Kaba Al Shamim
[No anonymity direction made]
Claimants
Representation:
For the claimants: Mr A Vaughan, instructed by AK Solicitors LLP
For the respondent: Ms H Rackstraw, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The claimants, Abdul Basher Mohammed Shamim, date of birth 3.1.70, his wife Hosen Ara Begum, date of birth 15.1.68, and their children, Anika Mubashsira Bushra, date of birth 9.11.01, and Kaba Al Shamim, date of birth 22.1.07, are citizens of Bangladesh.
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This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Duff, who allowed the appeals against the decisions of the respondent to refuse to vary leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant and dependants. The appeals were allowed on the basis that the decisions were not in accordance with the law and breached the appellants’ rights under article 8 ECHR. The Judge heard the appeal on 28.10.13.
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First-tier Tribunal Judge Frances granted permission to appeal on 26.11.13.
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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.
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The remaking of the decision was then listed before me on 19.5.14.
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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.
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The matter was heard as linked claimants. Unless otherwise stated or clear from the context, all references below to the claimant refer to the first claimant, Mr Shamim, the Tier 1 (entrepreneur) applicant.
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The appeal was also heard together with the Secretary of State’s appeal against the decision of the First-tier Tribunal in respect of Mr Shamim’s entrepreneur team partner, Hari Krishnan, reference IA/26749/2013. 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 determinations of Judge Duff.
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The relevant background can be summarised as follows. The claimant first entered the UK on 4.9.05 with leave as a student and extended thereafter at a Tier 1 Post Study migrant until 15.12.12. On 18.12.12 he made an application for further leave to remain as a Tier 1 (Entrepreneur), with Mr Hari Krishnan. The application was refused on the basis of failure of the appellant to comply with the evidential requirements under Appendix A paragraphs 41-SD and 46-SD. It is the appeal against that decision which came before Judge Duff.
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The particular failures relied on by the respondent are as follows:
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Insufficient evidence that the entrepreneurial team had already invested £30,000 into the business ‘Fairway Business International Ltd;’
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The bank letter does not state the claimant’s name or that of his entrepreurial team partner, or that the monies held can be transferred to the UK;
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The legal representative’s letter related to a previous declaration and not the one made with the current application. Further, it did not clearly confirm the third party’s identification details or their signature. The letter does not come from a legal representative who is authorised to practice in the country of the third party;
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Insufficient evidence that the claimant is engaged in business activity. None of the advertisements give the partners names. None of the contracts include a contact telephone number of the clients or original signatures from both parties, or have signatures but pages missing from the contracts;
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No evidence was submitted to demonstrate that that the business is subject to UK taxation.
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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.
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In summary, I found that:
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The First-tier Tribunal wrongly took into account evidence not submitted with the application;
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The First-tier Tribunal wrongly dispensed with the requirements of paragraph 41-SD in relation to PBS specified evidence; and,
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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);
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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;
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Wrongly applied a near-miss approach to the requirements of the Immigration Rules.
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I heard submissions from the representatives of both parties and received Mr Vaughan’s skeleton argument and reserved my determination on the remaking of the decision in the appeal, which I now give.
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For the reasons given at §12 to §17 of my error of law decision, I can only consider evidence in relation to the PBS application which was submitted with and at the date of application, which was 18.12.12. I can consider further evidence in relation to article 8 up to the date of my determination.
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Since the hearing before me, there have been a number of further relevant decisions of the Upper Tribunal in relation to PBS cases.
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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.
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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).
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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 decision in relation to the application of evidential flexibility set out between §19 and §31 of that decision.
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For the reasons set out in the error of law decision, without needing to repeat them here, it is clear that the claimants do not meet the requirements of the Immigration Rules for leave to remain as Tier 1 entrepreneur and dependents and their appeals in that regard must fail. Mr Vaughan made no submissions to the contrary.
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Developing his skeleton argument, Mr Vaughan submitted that the appellants should succeed under the Immigration Rules, on the basis that one or both...
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