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||Neutral Citation Number:  EWCA Civ 1280
||Case No: C5/2013/0540
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: IA/03790/12]
||Royal Courts of Justice
Strand, London, WC2A 2LL
||25th September 2013
B e f o r e :
LORD JUSTICE MOORE-BICK
|| NB (PAKISTAN)
||- and -
THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
(DAR Transcript of
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Mr Zane Malik and Ms Huma Price(instructed by Morgan Mark Solicitors) appeared on behalf of the Applicant
Mr Matthew Gullick (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Moore-Bick
- This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.
- The applicant is a national of Pakistan, who applied on 15 November 2011 for leave to remain in this country as a Tier 1 (Entrepreneur) Migrant under the points-based system. In January 2012 his application was refused on two principal grounds: first, that he was unable to show that he had under his own control £800 for a 90-day period ending one month before the date of the application, as required by paragraph 1A of Appendix C, for which he could have claimed ten points; and, second, that he had failed to establish by the submission of original documents his claim to have access to £200,000 from an uncle of one of his friends, as required by Appendix A.
- The applicant appealed to the First-tier Tribunal, which, in a decision published on 11 May 2012, held that by virtue of section 19 of the UK Borders Act 2007 it could only consider evidence that had been submitted with the original application apart from any additional evidence directed solely to establishing that documents originally provided in support of the application were genuine or valid. That was not the case here, so the Tribunal was limited in its consideration to the original materials. The applicant accepted that he did not satisfy the requirement to have £800 in his own bank account for the necessary period before the date of the application. He offered evidence that his father had the funds and was willing to support him, but the Tribunal held that that was not sufficient to satisfy the requirements of the rules. The evidence that provided for the existence of investment money took the form of photocopies rather than original documents. The First-tier Tribunal had some sympathy for the appellant, because the judge expressed the view that he should be given another chance to make an application for leave to remain. However, it held that strictly speaking the applicant had failed to produce the materials required to obtain the necessary number of points and that the decision of the Secretary of State was therefore lawful. The First-tier Tribunal also considered the applicant's right to respect for his private and family life under Article 8 of the European Convention on Human Rights, but came to the conclusion that removal would not involve a disproportionate interference with those rights.
- The applicant appealed to the Upper Tribunal, which heard his appeal on 11 January 2013. In a decision promulgated on 15 January it dismissed his appeal on the grounds that it was necessary for a Tier 1 Migrant to show that he had £800 under his own control for three months ending one month before the date of the application. That was something which the applicant had accepted that he was unable to do. However, by the time of the hearing, he was able to produce better evidence that he had access to the required amount of investment money, so that ceased to be a problem.
- The applicant now seeks permission to appeal to this court. His original grounds of appeal were rather long and discursive but in substance they raised the following four points:
(1) that the evidence that his father had the necessary funds and was willing to support him was sufficient to satisfy the rules;
(2) that the Upper Tribunal was wrong to hold that the funds had to be in his own possession and not merely available to him;
(3) that the Secretary of State should have applied what is known as the "evidential flexibility policy" and should have invited him to provide different evidence of the funds held by him, perhaps in the form of an agreement for an overdraft;
(4) that the Secretary of State had reached her decision in breach of the requirement of fairness.
- In the course of argument, counsel then appearing for the applicant, Mrs Price, placed some emphasis on the case of R(Alvi) v SSHD  UKSC 33,  1 WLR 2208, which had not featured anywhere in the grounds of appeal. I asked Mrs Price whether the point she wanted to make had been raised at the hearing. She told me that it had been, and in the end I was persuaded to adjourn the application in order to give the applicant an opportunity to amend his grounds of appeal. Mrs Price no longer represents the applicant, because she decided that it was necessary for her to make an affidavit explaining the course of the hearing before the Upper Tribunal in order to support her submission that the point on which she wished to rely had been raised at the hearing. As a result fresh counsel, Mr Malik, has now been instructed. In a statement made under the relevant provisions of Practice Direction 52, he has identified helpfully and clearly the only two points which he now seeks to advance in support of this application. Both concern the true construction of Rule 245DD and Appendix C to the Immigration Rules.
- The application for leave to remain as a Tier 1 Entrepreneur was made under Rule 245DD, which requires the applicant to have a minimum of 10 points under paragraphs 1-2 of Appendix C. Appendix C provides as follows:
"1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below:
(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application;
(b) If the applicant is applying as a Tier 1 Migrant… the applicant must have had the funds referred to in (a) above for a consecutive 90 day period of time…
(g) Where the applicant is applying as a Tier 1 migrant… the funds must have been under his own control on the date of the application and for the period specified in (b) above;
Tier 1 Migrants
(1) An applicant applying for entry clearance on leave to remain as a Tier 1 Migrant must score 10 points for funds…
2) 10 points will only be awarded if an applicant…
b) applying for leave to remain, has the level of funds shown in the table below."
The table sets out the level of funds as £800.
- The applicant in the present case had more than £800 in his bank account at the date of his application but not for the required 90-day consecutive period ending one month before that date, as required by paragraph 1A(b). He therefore sought to rely on the funds held by his father which his father had stated in an affidavit he was willing to make available for his maintenance.
- Mr Malik's first point is that Rule 245DD does not refer in terms to paragraph 1A of Appendix C and that although paragraph 1A states that in all cases, where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements set out in that paragraph, it does not state in terms that if the requirements are not met no points will be awarded. He submits that a comparison between the language used in paragraph 1A and that used in other paragraphs of the appendices (which in some cases expressly provide that no points will be awarded in certain cases) points to the conclusion that 10 points will be awarded if the applicant satisfies the requirements of paragraph 2B even if he does not satisfy the requirements of paragraph 1A. That is because paragraph 1A is not expressly referred to in Rule 245DD.
- Next, he submits that the requirement in paragraph 1A(g), that the applicant must have had the funds in question "under his own control", does not exclude the case when the funds are held in an account in the name of a third party, in this case the applicant's father, who is willing to put them at the disposal of the applicant.
- In my view neither of these submissions has any real prospect of success. The Immigration Rules, of which Appendix C forms part, must be read in a sensible manner. Paragraph 1A, although not referred to in Rule 245DD, refers to all cases where an applicant is required to obtain points under Appendix C, and, as Mr Malik accepts, plainly applies to this case. Paragraph 1A is in my view clearly intended to lay down the requirements which must be met if the applicant is to be awarded any points under paragraph 2. If that were not the case, paragraph 1A would be redundant and I see no prospect of persuading this court that it is.
- The requirement that the applicant must have had funds "under his own control" for 90 days naturally means that he has a legal right to dispose of them throughout that period. Contrary to Mr Malik's submission, control is not in my view arguably the same as influence, nor can it be construed in that manner in this context. The words "own control" can connote an enforceable right to decide how the funds are disposed of. Funds held in the account of a third party are not under the control, in that sense, of an applicant unless he has the right to require the bank or person by whom they are held to act on his instructions. That is emphasised, as I have already indicated, by the use of the expression "under his own control", which naturally excludes control exercised by a third party.
- For these reasons I am not persuaded that either of the arguments on which the applicant now relies has any real prospect of success, and it is therefore unnecessary for me to address the question whether they meet the requirements for an appeal to this court from the Upper Tribunal.
- For those reasons permission to appeal is refused.
Order: Application refused
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