Syed v Secretary of State for the Home Department

LADY JUSTICE HALLETT: This case was listed as one of a number of applications or renewed applications for permission to appeal at 10 o'clock this morning. It is now 10.15 am and nobody has appeared to represent Syed Syed. There is no need for anonymity, so in future he can be referred to by his full name.

On 16 May 2016 he was sent a letter by the list office notifying him of today's date. A number of attempts have been made by the associate this morning to notify or contact him. There has been no response to those attempts. The mobile telephone either has a message that the person is uncontactable or rings and there is no response. I am, therefore, satisfied on the information before me that he has been given proper notice, and I shall proceed to give judgment.

The Applicant is an Indian national. He came to the United Kingdom with leave to study. He was granted leave to remain as a post-study migrant. He made an application in June 2013 to remain as a Tier 1 (Entrepreneur) migrant under the points-based system. This was refused. His appeal was dismissed.

There were three proposed grounds of appeal to this court. First, that one of the Immigration Rules upon which the Secretary of State relied in refusing the applicant’s application required certain documentation that it was impossible to provide. It was argued that financial institutions could not produce letters stating that third party's funds were held for the purposes of an applicant establishing a business. This issue was considered and rejected in Iqbal and Others [2015] EWCA Civ 169 and therefore is unarguable.

The second ground similarly has already been considered and decided. This is in relation to the flexibility of the Secretary of State's evidential policy. The grounds of appeal accepted that the decision of Rodriguez and Others V Secretary of State for the Home Department [2014] EWCA Civ 2 is binding, but the Applicant wished (when the grounds of appeal were drafted)to challenge that decision. In my judgment, the law is clear and there is no basis for any such challenge as the law stands.

Ground three depended upon an Article 8 argument to this effect; as a genuine Tier 1 migrant who was unable to comply with the documentary requirements through no fault of his own, his removal would be disproportionate and would be incompatible with the principle of fairness.

However, having read the various determinations and decision letters, it is quite plain to me that there has never been any proper evidence of the applicant’s private and family life to which Article 8 considerations would attach. This seems to me to be yet another way of trying to argue the first ground dressed up as an Article 8 argument. Accordingly, I am satisfied there is no substance to this ground. In any event, it would have been simply an attempt to appeal findings of fact on the basis they were adverse to the Applicant.

For all those reasons, the renewed application for permission to appeal is dismissed.

Since delivering the judgment extempore I have been informed that the information I received as to the applicant’s having been notified of the hearing may have been inaccurate. To cater for that possibility I have added to my order Liberty to apply within 14 days to set this order aside if I was misinformed.