AH (Bangladesh) & Ors v Secretary of State for the Home Department

LORD JUSTICE ELIAS: This is a renewed application for permission to appeal against a decision of Upper Tribunal Judge Grubb.

The case concerns an applicant who sought to remain in this country as a Tier 1 entrepreneur. He did so on the basis of being part of an entrepreneurial team, with his partner who I call "MR".

The second and third applicants sought leave to appeal as dependents of the first applicant and their right to remain depends upon his application succeeding.

On 21st June 2013 the Secretary of State refused the application for further leave to remain and made a decision to remove the applicant and his dependents. He appealed to the First-tier Tribunal. The issue before the judge was whether the first applicant could establish that he and his entrepreneurial partner possessed the requisite funds which at the relevant time were £50,000. It was necessary, under the rules, that the applicant and his entrepreneurial partner had to demonstrate equal level of control over the funds relied upon. The account relied on had to be in both the name of the applicant and his entrepreneurial partner. It was also provided in the rules that the relevant bank statements must confirm both his name and that of his entrepreneurial team partner.

It appears that two documents were provided to the Secretary of State. Both of them were bank statements in short form but they did not make it plain that the relevant account was one in the name of both the applicant and his partner.

Apparently one statement relating to a period of time from the 4th May to 4th June was submitted in the name of Mr Hassan and the other, for a different period, was submitted and had as the account holder that of his partner. He points out that the number on the account was, however, the same in each case from which it might be inferred it was a joint account. But that is not what the relevant documentation actually disclosed to the judge.

It was conceded before the Upper Tribunal that in these circumstances the relevant rules were not complied with. Upper Tribunal Judge Grubb considered that the concession was properly made. The applicant has appeared before me today and made certain representations but in fact he was assisted by an application for permission to appeal which has spelt out more fully the nature of his case. One of the arguments was that the documentation provided complied with the terms of the rules, that the judge ought not to have accepted the concession to the contrary, and was obliged to reach the conclusion that there was no rule breach. I do not think that that was a necessary or inevitable conclusion and certainly it cannot be said that the judge erred in accepting a concession which he considered to be correct.

A further argument that was advanced before the Upper Tribunal was that the Secretary of State should have taken advantage of certain flexibility rules that are provided under paragraph 245AA. These, amongst other matters, allow a party to remedy an application if a document is in the wrong format. It was submitted that the document here was in the wrong format. The judge concluded that this was not a format issue. He said that a “format” issue has something to do with the arrangement or presentation of the information and it did not cover a case where the documents simply did not disclose that there were two joint account holders and apparently only suggested that there was one.

So the judge concluded they paragraph 245 AA did not apply to the first applicant either. It was pointed out that subsequently the rules have been amended in a way which Upper Tribunal Judge Grubb considered would have assisted the applicant in a case like this. Had the amended rules been in force at the material time then he would have had the opportunity to provide further information to the Secretary of State and to demonstrate that the account on which he relied was a joint account in both names satisfying the provisions in the rules. But it cannot possibly be said that those rules must be treated as though they had retrospective effect. They came into force on a certain date and this application was made before that date.

I should add this however. It does seem to me this was a particularly harsh result which followed from a literal application of the rules. It appears to be the case that in fact this account was in the names of both parties, a conclusion which might have been inferred from the fact that the two documents submitted concerned a bank account with the same number, As I say, that was not an inevitable inference but I am told that this was always the position in fact and it does seem hard that the applicant did not have the opportunity to put right that particular defect in the original application.

I am not in a position to require the Secretary of State to reconsider this matter but it might be thought this was a particularly harsh case where reconsideration might be appropriate. That is all I can properly say. I see no basis on which an appeal could succeed as a matter of law.