Iqbal & Dependants v Secretary of State for the Home Department

We heard these two appeals on consecutive days because they were both concerned with the requirements of paragraph 41-SD in Appendix A to the Immigration Rules. In both cases the First Appellant applied for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant. Paragraph 245D of the Immigration Rules explains that:

“This route is for migrants who wish to establish, join or take over one or more businesses in the UK”.

Paragraph 245DD of the Immigration Rules sets out the requirements that such an applicant must meet:

“To qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, 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.”

The relevant requirement is:

(b)

The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A…”

Appendix A sets out the attributes required to qualify under the points-based system. Paragraph 36 states that the attributes for Tier 1 (Entrepreneur) Migrants are as set out in Table 4. The relevant attributes are:

“Investment and business activity Points 25 points

(a)

The applicant has access to not less than £200,000, …

(d)

The applicant:

(ii)

has, or was last granted, leave as a Tier 1 (Post-Study Work) Migrant,

(v)

has access to not less that £50,000.

The money is held in one or more regulated financial institutions 25 points

The money is disposable in the UK 25 points.”

When Mr. Arshad Iqbal’s application was determined by the Respondent paragraph 41 in Appendix A provided that:

“An applicant will only be considered to have access to funds if:

(a)

The specified documents in paragraph 41-SD are provided to show cash money to the amount required (this must not be in the form of assets);

(b)

The specified documents in paragraph 41-SD are provided to show that the applicant has permission to use the money to invest in a business in the UK;

(c)

The money is either held in a UK regulated financial institution or is transferable to the UK.”

The money will remain available to the applicant until such time as it is spent in the establishment or running of the applicant’s business or businesses. “Spent” excludes spending on the applicant’s own remuneration. The UK Border Agency reserves the right to request further evidence or otherwise verify that the money will remain available, and to refuse the application if this evidence is not provided or it is unable to satisfactorily verify. “Available to him” means that the funds are: (1) in his own possession, (2) in the financial accounts of a UK incorporated business of which he is the director, or (3) available from the third party or parties named in the application under the terms of the declaration(s) referred to in paragraph 41-SD(b) of Appendix A.”

Paragraph 41-SD identifies the specified documents in Table 4 and paragraph 41. The Rules have been amended since the applications in these two appeals were determined. For convenience I have appended paragraph 41-SD as it was in force when the applications were determined. The requirements of paragraph 41-SD are lengthy and detailed. The focus of these appeals was upon the following requirements:

“41-SD. The specified documents in Table 4 and paragraph 41 are as follows:

(a)

The specified documents to show evidence of the money available to invest are one or more of the following specified documents:

(i)

A letter from each financial institution holding the funds, to confirm the amount of money available to the applicant (or the entrepreneurial team if applying under the provisions in paragraph 52 of this Appendix). Each letter must:

(6)

state the applicant's name, …….

(8)

confirm the amount of money available from the applicant's own funds (if applicable) that are held in that institution,

(9) confirm the amount of money provided to the applicant from any third party (if applicable) that is held in that institution,

(10) confirm the name of each third party and their contact details, including their full address including postal code, landline phone number and any email address.”

Mr. Arshad Iqbal is a national of Pakistan. The other Appellants are his wife and children. On 14^th September 2009 he was granted leave to enter the UK as a Tier 4 (General) Student Migrant until 30^th June 2010. His leave to remain in the UK in that capacity was extended until 14^th April 2012. On 14^th April 2012 he applied for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant. He had to demonstrate that he had access to £200,000. He was relying on funds from two third parties. His application was refused on 13^th September 2012 because the letters from the third parties’ banks in Pakistan did not state his name in accordance with requirement (6) in paragraph 41-SD(a)(i).

Mr. Iqbal appealed to the First-tier Tribunal. It was accepted that the bank letters did not comply with requirement (6), but it was submitted on his behalf that the requirement was an “insurmountable obstacle” because “Pakistan banking rules would not allow the applicant’s name to be put on a letter relating to another person’s account.” The First-tier Tribunal accepted this submission, concluded that requirement (6) “has not and cannot be met”, and allowed the appeal on the basis that the rules should be construed “sensibly”, and Mr. Iqbal had “complied with the purpose of the rules”: see paragraphs 11 and 18-20 of the First-tier Tribunal’s determination.

The Respondent appealed to the Upper Tribunal which set aside the First-tier Tribunal’s determination and redetermined the appeal. The Upper Tribunal did not accept the submission made on behalf of Mr. Iqbal that compliance with requirement (6) was not possible for an applicant who was relying on the availability of third party funds. It noted in paragraph 9 of its determination:

“T]hat what we do not have is clear evidence from the claimants that it is contrary to the law of Pakistan or contrary to the regulations of the banking industry to provide evidence in a way that complies with the evidence of 41-SD(a)(i)(6), and that we find is a telling omission.”

It was submitted to the Upper Tribunal in the alternative that it was not necessary for Mr. Iqbal to satisfy the requirements of paragraph 41-SD(a); if an applicant was relying on third party funds it was sufficient that he met the requirements of paragraph 41-SD (b). The Upper Tribunal rejected that submission in paragraphs 12 and 13 of its determination:

“12.

We are satisfied that a plain reading of paragraph 41-SD requires a person to meet paragraph 41-SD(a) and, if appropriate, (b) and possibly (c). It might be that (b) and (c) are alternatives to each other; that is not something that we have to decide in this appeal. We are satisfied that in every case where paragraph 41-SD applies then paragraph 41-SD(a) has to be satisfied.

13.

We think that this is the plain meaning of the Rule but we are reinforced in this construction by looking at 41-SD(a)(i)(8),(9) and (10), which on our reading, plainly contemplate the situation of a person relying either on third party funds or in part on their own funds and in part on third party funds, and still clearly having to meet the requirements of 41-SD(a).”

The Upper Tribunal refused permission to appeal. Mr. Iqbal applied to this Court for permission to appeal on two principal grounds:

The application to this Court was initially refused on the papers. On the oral renewal of the application Mr. Mashood Iqbal produced a number of decisions by the First-tier Tribunal in other cases in which the Tribunal had allowed appeals by Tier 1 (Entrepreneur) Migrant applicants on ground (1) and/or ground (2) (above). I granted Mr. Iqbal permission to appeal on ground (2) (above) but refused permission to appeal on ground (1): see [2014] EWCA Civ 173.

In his replacement Skeleton Argument Mr. Mashood Iqbal submitted that an applicant in the position of this Appellant, who was relying on third party funds, did not have to meet the requirements of paragraph 41-SD(a) because those requirements applied only to applicants who were relying on their own funds held in their own bank accounts.

However, in his oral submissions Mr. Iqbal not merely conceded, but positively asserted that an applicant who was relying on third party funds did have to comply with the requirements in both paragraph 41-SD(a) and paragraph 41-SD(b). He submitted, correctly in my judgment, that compliance with paragraph (a) was mandatory in all cases, otherwise the Respondent could not be satisfied that the required amount of money was available, and that if some or all of the money was being provided by the third parties the requirements of paragraph (b) had to be met in addition.

It might be thought that this effectively amounted to a concession that Mr. Arshad Iqbal’s appeal had to be dismissed, because it is common ground that the bank documents submitted in support of his application did not comply with requirement (6) in sub paragraph 41-SD(a)(i). Undaunted, Mr. Mashood Iqbal submitted that the requirements in sub paragraph 41-SD(a)(i) should be interpreted in a “purposive” manner, so that what had to be provided by an applicant who was relying on third party funds was a letter from each financial institution holding the funds to confirm the amount of money available to the (third party) account holder. The letter had to state the account holder’s, rather than the applicant’s name (requirement (6)), and confirm the amount of money available to the account holder, rather than the amount of money provided to the applicant from the third party, (requirement (9)). Mr. Mashood Iqbal submitted that the underlying purpose of paragraph 41-SD(a) in a case where the applicant was relying on third party funds was to establish that the funds were available to the third party. The third party’s declaration required by paragraph 41-SD(b) would then be sufficient to satisfy the Respondent that the third party’s funds would be made available to the applicant to invest in a business in the UK.

That submission ignores the clear wording of the rule itself. The purpose of providing the specified documents is to demonstrate that the applicant has access to the necessary funds: see rule 41. Since that is the underlying purpose it is not in the least surprising that sub paragraph 41-SD(a)(i) requires a letter from each financial institution holding the funds to confirm the amount of money available to the applicant. An applicant may rely on his own funds, or on funds made available to him by a third party. The Respondent has no interest in the amount of money that is available to a third party, save insofar as the third party is providing funds to the applicant to enable the applicant to invest in a business in the UK.

When we asked Mr. Iqbal why a “purposive” approach which substituted “account holder” for “applicant” in sub paragraph 41-SD(a)(i) was required, he submitted that if the requirements of the sub paragraph, in particular requirement (6), were read literally, compliance was not a practical possibility. Mr. Iqbal frankly accepted that this was an attempt to revive ground (1) (see paragraph 9 above) which had been rejected by the Upper Tribunal on the facts, and for which he did not have permission to appeal.

Subsequent to the grant of permission to appeal in this case, the Upper Tribunal has considered in three linked cases - Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to” [2014] UKUT 296 (IAC), Durrani (Enterpreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC),and Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297(IAC) - whether a literal interpretation of requirements (6), (9) and (10) in sub paragraph 41-SD(a)(i) would produce absurd results. In Fayyaz the Upper Tribunal said in paragraph 27 of its determination:

“The ingredients of the first refusal reason were, therefore, the failure of the Pakistani Bank to provide in either of its communications the full address, landline phone number and any email address of the third party funder. The conclusion that the requirement in the Rules that the bank letter contain this information does not give rise to any absurdity or anomaly is, in our view, easily made. This conclusion is driven by two considerations. The first is that there is no evidence lending weight to the Appellant’s argument. Evidence of absurdity could conceivably have been provided by the Appellant, her solicitors, the bank or the third party funder. There is no evidence from any of these sources. The second consideration is that, viewed purely objectively and in the abstract, there is no detectable absurdity or anomaly. The requirement that the bank provide this information does not give rise to any ascertainable insurmountable hurdle or impossibility. On the contrary, we readily infer that the information in question would be easily available and, further, that a genuine third party funder would be willing to provide it to the bank and to authorise its disclosure to the Secretary of State. The Appellant’s absurdity argument is further confounded by the evidence of a fully compliant bank letter (albeit provided belatedly) in two of the related appeals, the combined cases of Akhter and Maqbool: see [9] of our determination in those cases. Furthermore, there was no contention or, more important, evidence that any provision of Pakistani banking law OR internal bank rule on regulation OR bank/customer contract precludes disclosure of the information required by the Rules and we have no warrant for making an inference to this effect. Thus the first ground of appeal must fail.”

In Durrani the Upper Tribunal said in paragraphs 12 and 13 of its Determination:

“12.

All of 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, we consider it clear that 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. The letters do not commit either of the banks, whether the applicant’s own bank or that of the third party, to releasing a specified sum of money in order to finance the proposed business venture. Furthermore, we consider that there can be no conceivable 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. A simple statement to this effect, based on the customer’s instructions to the bank, is less onerous and intrusive than the disclosure of the customer’s name, account number and account balance. We consider that sub-paragraphs (6) and (9) are to be construed in this uncomplicated, reasonable and sensible fashion.

“13.

We are not persuaded that there is any principle of United Kingdom banking law precluding the construction of the relevant provisions of the Rules which we have espoused above. The relationship of banker and customer is contractual in nature. The bank owes a duty of loyalty and confidentiality to the customer, sometimes described as a duty of secrecy: see Jones - v - Law Society [1969] 1 Ch 1, 9, per Diplock LJ. However, as the leading authority of Tournier - v - National Provincial and Union Bank of England [1924] 1 KB 461 makes clear, the implied duty of confidentiality does not apply where the customer consents to the bank disclosing the information in question. Bankes LJ, having asked, rhetorically, what are “the qualifications of the contractual duty of secrecy implied in the relation of banker and customer”, continued, at 473:

‘On principle I think that the qualifications can be classed under four heads: (a) where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.’

[Our emphasis.]

While the first of these four qualifications, or exceptions, could also conceivably, apply to paragraph 41-SD(i) and (ii) of the Immigration Rules, we would observe that we received no argument on this point. What is clear beyond peradventure, in our estimation, is that the disclosure by a bank of information pertaining to a customer’s account is lawful where the customer consents. No argument to the contrary was developed on behalf of the Appellant.”

In my judgment, the inference drawn by the Upper Tribunal in paragraph 27 of Fayyaz and the Upper Tribunal’s conclusions in paragraphs 12 and 13 of Durrani were manifestly correct. It follows that there is no need to adopt a strained interpretation of the requirements in sub paragraph 41-SD(a)(i) in order to avoid any absurdity. The words mean what they say, and they achieve the underlying purpose of paragraph 41 in Appendix A to the Rules. These conclusions are sufficient to dispose of Mr. Arshad Iqbal’s appeal. It is common ground that the bank letters in support of this application did not comply with requirement (6).

I should, however, deal with one of the reasons given in Mr. Mashood Iqbal’s Skeleton Argument for the proposition that applicants relying on third party funds did not have to meet the requirements of sub paragraph 41-SD(a)(i). Requirement (9) is that the bank letter must:

“confirm the amount of money providedto the applicant from any third party (if applicable) that is held in that institution.” (emphasis added)

This initial submission was inconsistent with Mr. Iqbal’s later submission that an applicant relying on third party funds did have to comply with the requirements of both paragraphs 41-SD(a) and (b). In any event the submission is, with respect, misconceived. In support of the submission Mr. Iqbal drew our attention to the wording of the Policy Guidance which was in force when the application was made on 14^th April 2012 and contrasted the wording of the Guidance with the wording of requirement (9) in the Immigration Rules which had replaced the Guidance by the time when the application was determined on 13^th September 2012. The Guidance had referred to “the amount of money available to the applicant….”, whereas requirement (9) referred to “the amount of money provided to the applicant.” Far from supporting Mr. Iqbal’s submission, the fact that the underlying policy objective remained the same when the requirements were transferred from Policy Guidance into the Immigration Rules tends to support the Respondent’s submission that when read in context the words “available to” and “provided to” are synonymous. The context is a Policy or Rule which is seeking to establish that a certain amount of money is available to an applicant to invest in a business in the UK, whether that money is coming from his own funds or from third party funds. If Mr. Iqbal’s submission were correct, and “money provided to the applicant” in requirement (9) were a reference to money which had been provided to the applicant at some time in the past, rather than a reference to money which was being provided to the applicant by the third party, requirement (9) would be otiose: the money which had been provided by the third party would form part of the applicant’s own funds for the purpose of requirement (8). The Upper Tribunal rejected the same submission in paragraph 28 of its determination in Fayyaz:

“[W]e consider it appropriate to make clear our view that this discrete argument has no merit. It is trite that in construing these words the whole of the context must be considered. This includes Appendix A, Table 4, which repeatedly employs the terminology “access to” a minimum sum of money. This is repeated in the opening words of paragraph 41. In paragraph 41(b) and (c), the language includes “permission to use the money to invest in a business in the UK” and “transferrable to the UK”. In paragraph 41(d), the phraseology is “available to”. This is repeated in paragraph 41-SD(a)(i). In sub-paragraph (8) of the latter, one finds the words “available from”. In paragraph 41-SD(b)(i), the language used is “available for”. In our view, it is clear that the words “provided to” in sub-paragraph (9) of paragraph 41-SD(a)(i) denote “available to”. We note, in passing, that this discrete provision of the Rules has now been amended to this effect. While this amendment serves the interests of maximum clarity, we do not consider that it was necessary to remove any doubt or obscurity or to remedy any absurdity.”

I endorse the Tribunal’s view that this submission has no merit. It follows that Mr. Arshad Iqbal’s appeal must be dismissed.

Mr. Tank is a national of India. The Second Appellant is his wife. He was granted leave to remain as a Tier 4 (General) Student on 16^th October 2008. His leave was extended, and further extended as a Tier 1 (Post Study Work) Migrant until 13^th May 1013. On 3^rd May 2013 he applied for further leave to remain as a Tier 1 (Entrepreneur) Migrant. Because he had an established business he had to demonstrate that he had access to £50,000 rather than £200,000. He relied on funds from a third party. His application was refused because he had failed to produce a letter from the third party’s bank in accordance with sub paragraph 41-SD(a)(i).

Mr. Tank’s appeal was allowed by the First-tier Tribunal upon the basis that the Respondent should have applied her policy on flexibility, and had failed to consider Mr. Tank’s Article 8 rights. On appeal by the Respondent, the Upper Tribunal set aside the First-tier Tribunal’s decision. In response to the submission that compliance with the requirements of sub paragraph 41-SD(a)(i) was not possible for many applicants, the Upper Tribunal said in paragraph 15 of its determination:

“Whilst it may be difficult for some applicants to meet those requirements, I am not satisfied that it is impossible. I find no conclusive evidence to show that all applicants are unlikely to be able to meet the requirements, which are unfair as submitted by Mr. Saini. In any event those are the Rules and there is no provision for other forms of evidence to meet the requirements instead. On the evidence before me I find that the appellant has failed to meet the Rules under paragraph 245 41-SD(a)(i) both in form and content and accordingly the appeal is dismissed.”

The Upper Tribunal refused permission to appeal. Mr. Tank applied to this Court for permission to appeal. His Grounds of Appeal, drafted by Mr. Mashood Iqbal, raised the same two grounds as had been put forward on behalf of Mr. Arshad Iqbal (Grounds (1) and (2) in paragraph 9 above). The same five reasons were given in support of ground (2). Although it was submitted in the alternative that if the requirements of paragraph 41-SD(a) did apply to applicants who relied on third party funding, those requirements could not be met and were therefore absurd (Ground (1)), no reasons were given for this submission. There was no challenge to the Upper Tribunal’s decision to dismiss Mr. Tank’s Article 8 appeal. Moses LJ granted permission on the papers, noting that there was a lack of coherence in the way that the requirements of paragraph 41-SD were being interpreted which required clarification.

At the heart of Mr. Macdonald’s submissions on behalf of Mr. Tank was the proposition that applicants such as Mr. Tank who were not making any money available from their own funds and were relying entirely upon funds being made available to them by a third party did not have to comply with the requirements in paragraph 41-SD(a)(i), because the requirements “did not work in practice” in such cases. They did not work in practice because the third party’s bank would be unable or unwilling to provide the necessary information. Mr. Macdonald submitted that the underlying purpose of paragraph 41 of Appendix A was fulfilled, in the case of an applicant who was wholly reliant on third party funds, by compliance with the requirements of paragraph 41-SD(b). Mr. Macdonald accepted that it was not possible to construe paragraph 41-SD(a)(i), if it was applicable, in a “purposive” manner as was submitted by Mr. Mashood Iqbal in Mr. Arshad Iqbal’s appeal (paragraph 13 above).

The fatal flaw in Mr. Macdonald’s submission is that there is no satisfactory evidence that the financial institutions referred to in paragraph 41-SD(a)(i) would be unable or unwilling to provide the information required by that paragraph. Mr. Macdonald was unable to give any cogent reason, beyond the mere assertion that a third party’s bank would not be prepared to provide the required information, as to why the Upper Tribunal’s conclusions in Fayyaz and Durrani (see paragraphs 16 and 17 above)were not correct. Mr. Macdonald’s submission that compliance with paragraph 41-SD(b) was sufficient to meet the underlying purpose of paragraph 41 ignores the fact, fairly recognised by Mr. Iqbal in his submissions (see paragraph 12 above), that it is compliance with the requirements of paragraph 41-SD(a) which establishes not merely the existence of cash money to the amount required (see paragraph 41(a)) in an appropriate financial institution, but that the financial institution has been instructed by the third party that the money is to be made available to the applicant. The third party’s confirmation that they have made the money available for the applicant to invest in a business in the UK must also be provided in accordance with paragraph 41-SD(b).

It follows that Mr. Tank’s appeal under the Rules must be dismissed. For completeness, I should mention that Mr. Macdonald referred us to sub paragraph (d) which had been added to paragraph 41 by the time Mr. Tank’s application was determined by the Respondent (see paragraph 3 above). He relied on the fact that the definition of the words “[a]vailable to him”, when dealing in the third limb with funds which were available from a third party named in the application, referred to the terms of the declaration(s) required by paragraph 41-SD(b). However, this does not support the proposition that an applicant who is relying on the availability of third party funds need not comply with paragraph 41-SD(a). If anything, it reinforces the Respondent’s submission that an applicant who is relying on third party funds must comply with 41-SD(b) as well as 41-SD(a). The requirements in sub paragraph 41-SD(a)(i) (9) and (10) would be otiose were it unnecessary for an applicant who was relying on the availability of third party funding to comply with paragraph 41-SD(a).

Mr. Macdonald applied for permission to appeal against the Upper Tribunal’s decision to dismiss Mr. Tank’s Article 8 appeal. The application was made at a very late stage. The Respondent was not notified until the 11^th February 2015 that the application was to be made. Article 8 was not raised in Mr. Tank’s application to the Respondent for leave to remain under the Rules, and there was no evidential basis for an Article 8 claim before the Tribunal. In these circumstances, I would refuse the application for permission to appeal on this ground, and dismiss Mr. Tank’s appeal.

I entirely agree with Sullivan LJ’s judgment. I add a few words of my own only because it seems that there are currently many cases before this court raising the same or similar arguments.

Much has been said in these and other cases about a purposive construction of the Immigration Rules. Indeed, Mr Mashood Iqbal relied in his skeleton argument on the well-known dictum of Lord Brown SCJ in Mahad v. Entry Clearance Officer [2009] UKSC 16 at paragraph 10 to the effect that “[t]he Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy”. Lord Brown continued in the same paragraph by saying that the Secretary of State’s intention was to be “discerned objectively from the language used, not divined by reference to supposed policy considerations”. These passages make clear that the Secretary of State’s purpose and intention is to be ascertained by reference to the language she has used in making the Rules.

One could have been forgiven for thinking, in listening to the argument in these cases which Sullivan LJ has recorded, that the term “purposive construction” was being used as shorthand for “convenient construction”. The construction of Rule 41-SD(a)(i) put forward by Mr Mashood Iqbal replaced the words “available to the applicant” in sub-Rule (i) and “provided to the applicant” in sub-Rule (i)(9) with the words, respectively, “available to the account holder” and “provided to the account holder”. That would not have been a process of construction at all, but a process of wholesale redrafting to change the sense of the Rule.

Similarly, Mr Macdonald submitted that Rule 41-SD(a)(i) did not apply at all to applicants who were relying on 3^rd party funds. He maintained this argument in the face of the express requirement in sub-Rule (i)(9) for a bank letter to “confirm the amount of money provided to the applicant from any third party (if applicable) …”. His “purposive construction” enabled him to ignore the words actually used in the Rule, because he submitted that no bank could actually comply with that requirement. In my judgment, that is not an admissible approach.

As Lord Brown explained, the court should properly have regard to the Secretary of State’s purpose and intention as discerned objectively from the words used. The court will also lean against an absurd construction, where the words in question can bear the preferred alternative meaning (see Jacob LJ in Lewis v. Eliades [2004] 1 WLR 692 at paragraphs 58-61). But the court cannot and should not construe the Secretary of State’s Rules to mean something different from what, on a fair objective reading, they actually say. In this case, the two main construction points advanced respectively by Mr Iqbal and Mr Macdonald urged that result. I would hope that arguments of this kind will be less prevalent in future.

In conclusion, I would wish to reiterate what Sullivan LJ has already intimated, namely that I know of no reason under English law why banks should not be prepared to write a letter confirming, if it be the case, that they have been instructed by their customer to provide the funds held in that customer’s account for the benefit of a business enterprise being undertaken by a named applicant. As Bankes LJ explained in Tournier v National Provincial and Union Bank of Englandsupra,a banker’s implied duty of confidentiality does not apply where any disclosure is made with the consent of the customer.

I agree with both judgments.