Nandi, R (on the application of) v Secretary of State for the Home Department

The claimant applies for judicial review of the defendant’s decision to refuse his application for a variation of his leave to remain as a Tier 1 (Entrepreneur).

The claimant is an Indian national born on 30 August 1980. He entered the UK pursuant to leave granted on 11 May 2010 to remain as a Tier 4 student. That leave was extended on 12 April 2011 to 11 August 2014.

On 12 December 2012 the claimant applied to vary his leave to remain to that of Tier 1 (Entrepreneur) under the Points Based System ( PBS). On 19 June 2012 the defendant refused the claimant’s application. The claim was filed on 20 August 2013. In the absence of an Acknowledgement of Service by the defendant the application was adjourned for an oral hearing and directions given as to service of skeleton arguments. The defendant subsequently filed Acknowledgment of Service prior to the hearing, Permission was granted by Helen Mountfield QC sitting as a deputy High Court Judge.

Following the permission hearing the defendant filed detailed Grounds of Defence and a witness statement of Richard Jackson, addressing a point raised by the claimant, that paragraph 41SD(a) of Annex A to the Immigration Rules set documentary requirements it was impossible to fulfil.

The claimant limited submissions to two Grounds following the decision of the Upper Tribunal in the cases of Durrani (Entrepreneurs;bank letters;evidential flexibility)[2014] UKUT 295 IAC and Fayyaz (Entrepreneurs;Paragraph 41-SD (a)(i) “provided to”)[2014] UKUT 296 IAC in which the Upper Tribunal rejected arguments similar to that advanced at the permission stage in this case that paragraph 41-SD(a) did not apply or was irrational or impossible to comply with and should not have been applied. Whilst Mr Biggs on behalf of the claimant did not concede those points, he did not pursue them.

The two Grounds relied upon are that:

Part 6A of the Immigration Rules contains the PBS with detailed and prescriptive requirements for applicants.

Paragraph 245DD provides as relevant

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.

Requirements:

….

(b)

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

…

(e)

The applicant who is applying for leave to remain must have, or have last been granted, entry clearance, leave to enter or remain:

…

(xiv)

as a Student,

….

(g)

The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

Appendix A Table 4 provides in tabular form the points available including for those, like the claimant, who rely on pursuing an investment or business activity. The claimant sought to meet the requirement for 75 points by providing evidence under (a) in the Table that he had access to not less than £200,000, under (c)(vi) that the money was held in one or more regulated financial institutions and (c) (vii) that the money was disposable in the UK. Each of those criteria, if shown, would have attracted 25 points.

Requirements for a document provided to show evidence of the availability of money to invest under Table 4(a) are specified in paragraph 41SD(a) and include that it must confirm the amount of money available to the applicant, must be an original document and not a copy, and state the applicant’s name.

Paragraph 41SD(b) specifies further requirements for additional documents where the applicant is applying to use money from a third party, as in this case.

(i)

An original written declaration from every third party that they have made the money available to invest in a business in the United Kingdom, containing:

(1)

the names of the third party and the applicant (and his team partner's name where relevant), or the name of the applicant’s business,

(2)

the date of the declaration,

(3)

the applicant's signature and the signature of the third party (and the signature of the applicant's team partner where relevant),

(4)

the amount of money available in pounds sterling,

(5)

the relationship(s) of the third party to the applicant,

(6)

if the third party is a venture capitalist firm, confirmation of whether this body is registered with the Financial Conduct Authority (FCA) and its entry in the register includes a permission to arrange, deal in or manage investments, or to manage alternative investment funds,

(7)

if the third party is a UK Seed Funding Competition, confirmation that the applicant, the entrepreneurial team or the applicant’s business has been awarded money and that the competition is listed as endorsed on the UK Trade & Investment website, together with the amount of the award and naming the applicant, the entrepreneurial team or the applicant’s business as a winner,

(8)

if the third party is a UK Government Department, confirmation that it has made money available for the specific purpose of establishing or expanding a UK business, and the amount….

and

(ii)

A letter from a legal representative who is independent from the third party or third parties, confirming the validity of signatures on each third-party declaration provided, which confirms that the declaration(s) from the third party or parties contains the signatures of the people stated. It can be a single letter covering all third-party permissions, or several letters from several legal representatives. It must be an original letter and not a copy, and it must be from a legal representative permitted to practise in the country where the third party or the money is. The letter must clearly show the following:

(1)

the name of the legal representative confirming the details,

(2)

the registration or authority of the legal representative to practise legally in the country in which the permission or permissions was or were given,

(3)

the date of the confirmation letter,

(4)

the applicant's name (and the name of the applicant's team partner’s name where relevant) and, where (b) applies, that the applicant is a director of the business named in each third-party declaration,

(5)

the third party's name (which cannot be the legal representative themselves or their client),

(6)

that the declaration from the third party is signed and valid, and

(7)

if the third party is not a Venture Capitalist Firm, Seed Funding Competition or UK Government Department, the number of the third party or their authorised representative's identity document (such as a passport or national identity card), the place of issue and dates of issue and expiry.

As at the date of the claimant’s application paragraph 245AA of the Rules provided for the consequences of failing to provide specified documents:

(a)

Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).

(b)

If the applicant has submitted:

(i)

a sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing)

(ii)

A document in the wrong format; or

(iii)

A document is a copy and not an original document;

the UK Border Agency contacts the applicant or his representative in writing, and request the correct documents. …

(c)

the UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.

The paragraph has since been amended.

The claimant provided three pieces of documentary evidence required under paragraph 41-SD to establish he had access to funds

In the decision letter of 19 June 2013 , the defendant set out the deficiencies in the documents provided by the claimant as the basis for the refusal of the application as follows:

“..the bank letter is not acceptable because it is not an original document. It further is not acceptable because it does not state your name, the third party has written on the letter that it is reference to yourself , however this is still unacceptable. The bank letter does not confirm that you have access to the funds in the account and the amount of money being available to you.

The third party declaration that you have submitted is not acceptable because it does not confirm the relationship of the third party to you.

No declaration document from a legal representative has been supplied to establish that your signature on the third party declaration is valid and has been witnessed.

You have therefore not submitted the specified evidence as listed under paragraph 41-SD to establish that you have access to the funds that you are claiming.

In accordance with paragraph 14 of Appendix A to the Immigration Rules, you are therefore not considered to have access to the funds that you have claimed.

The decision has been made not to request additional documentation or exceptionally consider the application under the provisions of paragraph 245AA as it is not anticipated that addressing the omission or error would lead to a grant of leave.”

Mr Biggs submits that the there are no failings in compliance with the requirements of paragraph 42SD other than technical failings in the banking letter. He accepts, as is apparent on the face of the document, that in addition to being a copy, it failed to comply with three further requirements of paragraph 41SD in failing to include the applicant’s name, the amount of money available to him and that he had access to the funds in the account. He submits however, that this document was only part of the evidence provided. Rather than limiting herself to the provisions of paragraph 245AA the defendant should have following her published policy of evidential flexibility which was more favourable to the claimant and given him the opportunity of rectifying the defects or providing more documents. I will return to that aspect of the application.

Mr Biggs mounts two separate arguments against there being the breaches of the provisions of paragraph 41SD in the third party declaration and the solicitor’s letter relied upon by the defendant.

He submits in relation to the third party declaration that it was not necessary on the facts of this case for the document to state the relationship of the third party to the claimant, as he had no relationship of any kind with him which he was required to state. All that could be said was that he was an investor, which was implicit in the document and in paragraph (b) (i) in any event, and that is not a “relationship”.

In relation to the solicitors letter, he submits that there is no requirement within 41SD (b) (ii) for the solicitor to verify that it is the applicant’s signature on the third party declaration. He submits that requirements (1) to (7) of 41SD(b)(ii) set out what is required, and do not include that the legal representative verify the applicant’s signature. The requirement in the first part of sub-paragraph (ii) is limited by the subsequent sub-sections and therefore does not impose a separate obligation. The paragraph must be considered in context and its criteria may be met by a number of documents taken together rather than in a single document. Reliance is placed on Secretary of state for the Home department v Shebl [2014] UKUT 00216 (IAC) in which the word “contract” was construed as covering a number of documents rather than a single document.

I reject both of these submissions. The word “relationship” in sub-paragraph (b)(i)(5) is not limited and has its natural meaning which encompasses a wide range of arrangements and circumstances existing between the parties. It is not, as appears to be suggested, to be given a narrow interpretation of personal or familial relationship. Such a construction would be contrary to the context of Part 6 and the type of funding arrangements referred to. In context “relationship” must include a range of arrangements between the applicant and different types of investor (envisaged in sub- paragraphs (5) – (8) for example). The letter from Mr Nicky Patel dated 11 December 2012 contains no information other than that the sum of at least £200,000 is in “our” bank account and will be made available to the claimant for his proposed business. The relationship of investor and businessman is a relationship within the meaning of the sub-section.

Mr Biggs’ construction of 41SD(b)(ii) in relation to the content of the solicitor’s letter is equally flawed. It fails to take account of the clear requirement in the first part of sub-paragraph (ii) that the letter “confirms that the declaration from the third party contains the signatures of the people stated” ( emphasis supplied ) of which one must be the applicant. The section acknowledges that there may be a need for more than one document, and “several letters from several legal representatives” may be required. In expressly including that acknowledgement, it excludes the requirement being met by documents other than letters from legal representatives. Shebl (above) does not therefore assist the claimant in this respect.

The subsequent paragraphs do not limit that requirement. That the signature of the applicant and third party must both be verified by the solicitor is clear from sub-paragraph (6) which requires that the letter must show that the declaration from the third party is “signed and valid”. As the preceding section (b)(i) (1) and (3) make clear, in order to be valid the third party declaration must contain the names of the third party and the applicant and the signatures of both.

Consequently, the defendant was entitled to take into account both the defects in the third party declaration and the solicitor’s letter in coming to her decision, in addition to those in the banking letter, to which I return.

The banking letter from Barclays dated 11 December 2012 to Mr Patel, the third party, started with a significant disclaimer.

“This information is given in strict confidence for your private use only,. Neither the Bank nor its officers gives any guarantee representation or warranty or accepts any responsibility or liability as to its accuracy or completeness It may not be disclosed to or relied upon by any third party without the Bank’s written prior consent.”

The letter did not then comply with the requirements of paragraph 41SD in the respects set out above. Mr Biggs’ submission is that the defects in the banking letter are technical and minor and would not on their own have justified the decision made by the defendant. He accepts that the judgement is that of the defendant as to whether they are minor, and in addition whether, if so, their cumulative effect is also minor.

His main submission, however, is that any deficiencies in the letter or documents singly or cumulatively could have been remedied by the claimant, had the defendant properly considered and applied her policy of evidential flexibility. The defendant has a discretion to consider cases outside the Rules. R (on the application of Thebo) v Entry Clearance officer Islamabad (Pakistan) 2013 EWHC 146 Admin. Further the defendant is bound by public law principles to act consistently with her published policy even if this required her to act outside the rules

Mr Biggs submits that in the letter of 19 June 2013 the defendant made clear that she had considered paragraph 245AA only, and had not taken account of published policy as to evidential flexibility.

During the course of the hearing a difference arose as to what policy document was in place at the time of the application on 12 December 2012, and the decision on 19 June 2013.

In his statement Mr Jackson set out that an internal PBS Process Instruction “Evidential Flexibility” was adopted on 10 August 2009. It underwent various revisions and he produced a version introduced on 17 June 2011 which was said to be in place at the date of the application. He also said that on 6 September 2012 the defendant’s policy on Evidential Flexibility was incorporated in the Immigration Rules by rule 245AA to comply with the decision of the Supreme Court in Munir v SSHD. The Process Instruction of 17 June 2011 remained in force until 12 March 2013, but was to be read subject to the provision of 245AA.

Mr Biggs submits that whereas paragraph 245AA provides for only three circumstances in which there will be flexibility applied to evidential deficiencies, the policy document of 17 June 2011 went wider. At Annex A “Evidential flexibility – Documents which it may be appropriate to request for each Tier”, under T1 Entrepreneur it includes “missing information from the required letters/documents”. The defendant should have followed the policy and it was not reasonable to say that it could not be anticipated that addressing the omission or errors in the letter would lead to a grant of leave. The documents the claimant submitted met the relevant financial criteria even if the documents were deficient.

Further written submissions were provided after the hearing on 20 January 2015. Further enquiry showed that after the withdrawal of the process instruction of 17 June 2011 in March 2013, further guidance was issued, valid from 20 May 2013, with a link provided to further instruction. This was therefore in force at the date of the decision in June 2013. Mr Biggs submits that there is little if any difference in approach in this document and none which renders it less favourable to the claimant than the document produced by Mr Jackson. Mr Thomann on the other hand submits that there is clearer reference at page 5 of the May 2013 document to the terms of paragraph 245AA, thus reinforcing that operation of the policy is subject to the constraints of that paragraph of the Rules.

I consider that for the purposes of this application there is little if any material difference in the documents which would affect the issues before the Court.

Mr Thomann submits that the evidential flexibility policy has in fact been incorporated into the Rules by paragraph 245AA. He relies upon Secretary of state for the Home department v Rodriguez [2014]EWCA Civ 2 where at paragraph 47 Davis LJ said

47.

Subsequently – although in a way not directly material to these present three cases – what was contained in the Evidential Flexibility policy guidance has in effect been incorporated into the Immigration Rules themselves from 6 September 2012. The provisions of such Rules have themselves subsequently been amended: see Rule 245AA

And in the reference by Davis LJ to Alam at paragraph 100:

Generally, Sullivan LJ in terms said in paragraph 35 of Alam:

"…the Immigration Rules, the Policy Guidance and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused.….. Mr Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion."

Sullivan LJ went on later to say in paragraph 45:

"….the appellants were simply at fault in not supplying the specified documents with their applications. I endorse the view expressed by the Upper Tribunal in Shahzad (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in "hard" decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS."

Those remarks remain, in my view, and allowing for the terms of the process instruction, apposite to the present three cases”.

He submits that the claimant failed to provide the information required within the Rules and the defendant was entitled to come to the decision on the basis of the cumulative defects, that an operation of evidential flexibility would not avail the claimant. Further there is no basis for a more general discretion being properly exercised outside the rules. No evidence has been provided to support an exceptional approach being taken.

Mr Biggs accepted that the decision of the Court of Appeal in Rodriguez is prima facie against the approach he is inviting the Court to take in this case. At paragraphs 86-7 and 91 of the Judgement it is made clear that the defendant is not required in every case to afford an opportunity to put right defects in the documentation which is required even where there is guidance set out in a policy document. However, he submits that Rodriguez, where the failures would have made no difference as there was no indication that the Claimants could show they met the financial criteria in substance rather than in form, can be distinguished in this case as there is every reason to believe that the claimant could satisfy the criteria, given the opportunity.

It is not disputed in this case that there were deficiencies in the claimant’s documentation. In my judgment the Secretary of State was entitled to treat the failures in all three documents as cumulative and not minor. None of the three separate documents was free of defects and taken together the effect was to present an application devoid of key information required to assess the merits of the application under the PBS. Whilst Mr Biggs submits that it is clear that the claimant meets the financial criteria in substance, that is not the basis of the PBS. Nor is it clear from the documents provided by the claimant. The purpose of the stringent conditions is to provide the defendant with specified evidence upon which the decision can be made.

The policy guidance documents, taken at their highest, provide that if there are “minor errors or omissions” on a valid application but there is enough evidence to show the application would otherwise be granted, the caseworker “ may “ seek further clarification or information.

Following Rodriguez in my judgment the provisions of paragraph 245AA “in effect” contain the evidential flexibility policy. The policy documents contain some further guidance which allows for the clarification or rectification of minor errors or omissions, but there is no indication that this is not subject to the specific requirements of paragraph 245AA. At the time of both the application and decision there was no requirement for the defendant to provide an opportunity for correction of errors, even within the confines of 245AA.

In this case, the defendant did not specifically refer to the policy guidance in the decision letter. However, the nature and extent of the errors were set out, with a decision that no further request would be made as it was not anticipated that this would have led to leave being granted. The test was essentially the same as would have been applied under the guidance documents, had they been specifically referred to. The multiple errors, not limited to the three categories identified by paragraph 245AA, have not been addressed, and there is no indication on the facts that any different outcome would have been achieved. There is some force in Mr Thomann’s point that there is an inconsistency in the claimant‘s argument at the permission stage that it was impossible to comply with the Rules where third party funding was being employed, and his contention that the operation of a policy of evidential flexibility by the defendant requesting further documentation would have enabled him to comply and be granted leave.

Further, the claimant has failed to provide any basis upon which a discretion to grant leave outside the rules should exceptionally have been exercised by the defendant.

The defendant’s decision cannot in the circumstances be regarded as unlawful or unreasonable as a result of no opportunity being given to the claimant to remedy the defects in the documents,, and nor was there a wrongful fettering of her discretion. The claim for judicial review is refused.