Heard at Field House
On 5th January 2015
Before
UPPER TRIBUNAL JUDGE COKER
Between
THE QUEEN ON THE APPLICATION OF
IMRAN IDRIS
Applicant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Ms S Haji, counsel, for the applicant (instructed by Immigration Aid)
Ms M Bayoumi, counsel, for the respondent (instructed by Treasury Solicitor)
JUDGMENT
The applicant had applied for leave to remain as part of a team with Malik Muhammad Zulqarnain as a Tier 1 (Entrepreneur) Migrant, such application having been made on 12th December 2012 and refused on 20th May 2013 whilst the applicant had extant leave to remain. His leave to remain expired on 11th April 2014.
On 20th September 2014 UTJ Taylor granted permission with the following observations:
It is arguable that the respondent did not properly apply either the operative provision of Rule 245AA nor her guidance on PBS evidential flexibility valid as at the date of decision. The relevant rule and guidance state that the respondent may contact the applicant if a document does not contain all the specified information or is not in the correct format. The applicant did not provide an e-mail address or a landline number on an application for leave to remain as a Tier 1 entrepreneur migrant. There is no landline number and the requirement in the rule refers to “any” email address i.e. it recognises the possibility that one does not exist. The relevant information, in so far as it existed, was subsequently provided.
The applicant contended in his application for permission that the respondent’s decision was inconsistent with her evidential flexibility policies as per Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC). Although before me the applicant accepted that reliance on Rodriguez(IAC) did not hold in the light of SSHD v Rodriguez [2014] EWCA Civ 2, Ms Haji submitted that at the date of decision Rodriguez (IAC) was applicable and thus the required documents should have been requested. This is a submission totally without merit. The Court of Appeal overruled the guidance set out in Rodriguez (IAC) and held that it was wrong in law. In [92] Davis LJ held
In this regard it is quite true that the introduction to the process instruction flagged up two significant changes, one of which was that "there is no limit on the amount of information that can be requested from the applicant". But it is to be noted that that is immediately qualified by the instruction that requests for information should not be speculative and – as subsequently reiterated – there must be sufficient reasons to believe that any evidence requested existed. The same point is made in step 3 of the procedure table – taking the example of bank statements (specified documents), the example given is that of bank statements missing from a series: see also what is said in this regard under the heading "Maintenance" at page 10 of the instruction. Taken overall, the Evidential Flexibility process instruction is demonstrably not designed to give an applicant the opportunity first to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration.
The policy in force at the time of the Court of Appeal judgment in any event ended on 6th September 2012 (prior to Mr Idris’ application) with the introduction of paragraph 245AA of the Immigration Rules. This is subject to the Modernised Guidance, which came into force on 13th March 2013.
Paragraph 245AA, at the material time, read as follows:
245AA. Documents not submitted with applications
(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).
If the applicant has submitted:
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);
A document in the wrong format; or
A document that is a copy and not an original document,
the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.
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.
If the applicant has submitted a specified document:
in the wrong format, or
that is a copy and not an original document,
the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).
The applicant accepts that the letters submitted by him with his application provided by his third party sponsor’s bank (Habib Bank), did not contain the full contact details of the third party sponsor namely the landline number and any email address.
Paragraph 245DD states that to qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant an applicant “must” meet the requirements listed. This includes, as per Paragraph 41-SD of Appendix A(a)(i)(10) of the Immigration Rules, a letter:
Confirm[ing] the name of each third party and their contact details, including their full address including postal code, landline number and any email address
The applicant did not submit such a document.
Durrani [2014] UKUT 295(IAC) confirms that the requirements of the Rules are to be construed sensibly and reasonably in their full context. McCloskey J states:
…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 it economic viability.
The applicant submits that the omission was minor and that the missing information fell within the ambit of paragraph 245AA(b)(ii) namely that it was in the wrong format. Even if it is arguable that the use of the term “any email” incorporates an assumption that an email is not necessary, the mandatory letter did not include the landline number. Missing information is not “the wrong format”. It is missing information. As was held in Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC), a bank letter that does not include the postal address, landline and email address is not thereby in the wrong format. The Rules are plain and unambiguous and are to be complied with. The omission from the application of the required landline number and email address, or any explanation why that information could not be provided, meant that information demanded as necessary by the Rules had not been provided so that, as had been made clear, this was an application that fell to be refused on that basis alone. It was not irrational, in this day and age, for the respondent to conclude that an individual has a landline and an email address but has chosen not to disclose them. Had the applicant explained that his third party sponsor did not have an email address or a landline number, the respondent could have considered that information. There is no obligation on the respondent to request the provision of a landline number and email address in these circumstances. It certainly does not amount to a document being in the wrong format.
There is no requirement on the respondent to request information where a document including mandatory information has not been provided. Although the applicant submits that he had submitted a specified document and thus did not fall within paragraph 245AA(c), he had not. He had submitted a document, which did not include the mandatory information and there was no explanation for the lack of such information. The document was not therefore a specified document.
The respondent was under no obligation to make an enquiry of the applicant as to why he had not provided details of his third party sponsor’s landline or email address.
For these reasons the claim must fail.
This judgment was handed down on 12th February 2015 at which the applicant represented himself and Ms S Idelbi represented the respondent.
The applicant sought permission to appeal to the Court of Appeal. I am satisfied there is no arguable point of law capable of affecting the outcome of the application. I refuse permission to appeal to the Court of Appeal.
The respondent filed a schedule of costs. I directed that the applicant serve and file any objections limited to 2 pages of A4 within seven (7) days. Thereafter the file shall be placed before me for a separate costs order to be made on the documentary material before me as regards costs.
Upper Tribunal Judge Coker