MH (Bangladesh) & Anor v Secretary of State for the Home Department

LORD JUSTICE MOORE-BICK: This is a renewed application for an extension of time, permission to amend the notice of appeal and permission to appeal following refusal on paper by the single Lord Justice.

The applicants, who are husband and wife, are both citizens of Bangladesh. On 22 January 2006, the applicant (I shall refer to the husband since the wife's application is entirely dependent on his) was granted leave to enter the United Kingdom as a Tier 4 student until 31 January 2008 and his leave was subsequently extended until the end of March 2013.

On 11 September 2012, he applied for further leave to remain as a Tier 1 (Entrepreneur) Migrant under the Points Based System. He said that the necessary funds would be made available to them by a third party, a Mr Khan, and pursuant to the requirements of the Rules, in particular Rule 41-SD of Appendix A to the Immigration Rules, he submitted a letter and a statement from BRAC Bank, a declaration from the third party in relation to the funds and a letter signed by a legal representative, a Mr Rahman, confirming the third party's signature.

The respondent refused the application on the grounds that the applicant had failed to satisfy the requirements of Appendix A to the Rules for at least three reasons. First, because the letter from the bank did not include Mr Khan's landline telephone number, as required by paragraph (a)(i)(10) of Table 4 of Appendix A; second, that the letter's authenticity could not be verified using what are described as standard procedures; and third, that both Mr Khan's declaration and the letter from the bank failed to confirm that the requisite funds were then available to the applicant but stated that they would be transferred to him if he obtained leave to remain.

The Secretary of State did not ask for any additional documentation under paragraph 245AA of the Rules because it was said that addressing the omissions would be unlikely to lead to a grant of leave. She also considered that the applicant and his wife had failed to satisfy the requirements of Appendix B because the Level 2 ESOL certificates that they had provided in support of their applications were not diplomas within the meaning of the published list of acceptable English tests for the purposes of granting leave to remain.

As a result of the refusal of the application removal directions were set.

The applicant appealed against that decision on the grounds that the Secretary of State had misdirected herself in the application of the Immigration Rules, that she had failed to give the applicant an opportunity to provide missing evidence in accordance with her policy of evidential flexibility and that she had acted in a way that was incompatible with his rights under Article 8 of the European Convention on Human Rights.

When the matter came before the First-tier Tribunal, the applicant sought to rely on a subsequent letter from the bank confirming that the necessary funds were currently at their disposal and he also argued that the original bank letter should have been read in conjunction with other bank documents which did contain the landline telephone number said to be missing from the supporting documentation.

In its decision, promulgated on 6 March 2014, the First-tier Tribunal held in favour of the applicant in relation to the missing telephone number and also in relation to the English language test but dismissed his appeal on the grounds that the letters from the bank and Mr Khan confirming the availability of funds were conditional in nature and did not satisfy the Rules because they stated that the funds would be made available only if leave to remain were granted. The tribunal also held that the applicant was not entitled to rely on the later letter from the bank because it had come into existence after the Secretary of State had made her decision. Finally, the tribunal rejected the case based on Article 8.

The applicant obtained permission from the Upper Tribunal to appeal on two grounds: first, that the Secretary of State should have read the bank letter in conjunction with the transaction docket, which was another bank document which had been included with the application and did contain the telephone number; second, that the tribunal had construed the requirement concerning availability of funds too narrowly. They also sought at the hearing to argue that the letter from the bank was in the wrong format within the meaning of paragraph 245AA of the Immigration Rules and that the Secretary of State should have requested additional documentation in the appropriate format.

The Upper Tribunal dismissed the appeal following the decision in Akhtar & Another v Secretary of State for the Home Department [2014] UKUT 00297. It concluded that it was essential that the letter from the financial institution and also the third party declaration should contain contact details including a landline telephone number and that it was also essential that a statement was made that funds were presently (i.e. unconditionally) at the disposal of the applicant. It rejected the submission that these defects involved a failure to provide material in the connect format within the meaning of that expression in paragraph 245AA of the Immigration Rules.

The grounds of appeal to this court as currently drafted are two. It is said that a statement that the funds are available if an applicant obtains leave to remain satisfies the requirements of the Rules because it demonstrates that the funds are available to the applicant in every real sense. It is also said that a failure to confirm in unconditional terms that funds are available can properly be regarded as an error in format so as to engage the evidential flexibility rules.

Mr Singer, who has appeared on the applicant's behalf this morning, seeks permission to add to that an additional ground of appeal to the effect that the omission of the third party's landline telephone number was an error of formatting that again should have prompted a request for further evidence under the Rules or under the published policy guidance on evidential flexibility, which is couched in rather broader terms. My attention has also been drawn to the fact that the applicant's business partner, who would join with him in making the investment in this country has had his application for leave to remain allowed.

The first matter that I have to consider logically is the question of delay. The Upper Tribunal refused permission to appeal on 23 October, so a notice of appeal ought to have been filed by 20 November 2014. It was actually filed on 22 January 2015, some 2 months out of time because it appears that on 20 November, which was the last day for taking this step, the applicant's legal representatives wrote to the Upper Tribunal asking again for permission to appeal to this court, notwithstanding that an application in those terms had already been rejected.

It has been emphasised in a number of recent cases that the court expects parties to comply with the rules relating to the filing of notices of appeal and, in my view, a basic error of that kind on the part of the party's legal adviser does not provide a good explanation for delay. Two months may not seem very long but in the context of a prescribed period of 28 days, it does call for a good explanation and, in my view, there is none. Mr Singer has submitted that the applicants were not at fault and should not be penalised for the mistakes of their advisers, and I understand why he says that. On the other hand, if that were a good enough reason to extend time in every case, it would only act as an encouragement to dilatory, overworked or ignorant legal representatives who would have no incentive to abide by the Rules at all.

I am afraid that the truth of the matter is that the delay in this case is not trivial and no good reason can be put forward for it. But, having said that, it is necessary to consider all the circumstances of the case, one of which may be the strengths of the merits of the appeal.

When I come to consider the merits of the appeal, I remind myself that at the time when the Upper Tribunal was dealing with the matter, and indeed at the time when the notice of appeal was filed, the courts did not have the benefit of the Supreme Court's decision in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59, in which the court endorsed a rather less technical approach to the Rules than had previously been adopted.

The single Lord Justice refused permission to appeal on the papers because although he thought that although the first ground of appeal was arguable, there was no attempt to challenge the second ground on which the Upper Tribunal had rejected the appeal and therefore it was bound to fail in any event. That difficulty is remedied, to some extent, by the application for permission to amend the grounds of appeal.

I was concerned at one stage whether the proposed additional ground of appeal was ever before the Upper Tribunal but having looked again at the broad way in which the application for permission to appeal to the Upper Tribunal was framed and the broad way in which permission to appeal was in due course granted, I am satisfied that it was.

It seems to me that it would be appropriate to grant permission to amend the grounds of appeal to add a third ground. I am persuaded that grounds 1 and 3 on that basis are arguable and having regard to the importance of the issues to which this case gives rise, some of which are similar to issues in respect of which permission to appeal has been granted in other cases, and having regard to the fact that the applicant's business partner has been granted leave to remain in this country for the purposes of promoting the business, I am persuaded, despite the delay in this matter, that it would be right to grant an extension of time and to grant permission to appeal. Although I have grave doubts as to whether there is any real merit in the second ground of appeal, I think it would be inappropriate in this case to restrict the grounds of appeal and therefore, subject to seeing a formal application for permission to amend the grounds of appeal, I will grant permission generally.