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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nandi, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 2702 (Admin) (04 June 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/2702.html Cite as: [2015] EWHC 2702 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
____________________
THE QUEEN (on the application of Mr SARANG DHARMANGNA NANDI) |
Claimant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Colin Thomann (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 20 January 2015
____________________
Crown Copyright ©
HHJ Deborah Taylor :
Background
The Grounds
i) The defendant acted unreasonably, irrationally or unfairly in rejecting the claimant's application without giving him the opportunity to remedy defects in the documentation provided; and
ii) the defendant fettered her discretion by confining herself to acting in accordance with paragraph 245AA of the Immigration Rules when there was a more generous policy set out in policy documents current at the time of the application.
The Legal Framework
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.
(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.
(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's documents
i) a bank letter from Barclays Bank, (within the provisions of paragraph 41SD(a)(i) ) "the banking letter"
ii) a declaration from a third party investor, (within the provisions of paragraph 41SD(b)(i)) "the third party declaration" and
iii) a letter from a firm of solicitors (within the provisions of 41SD(b)(ii))."the solicitor's letter"
"..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."
Submissions
The third party declaration and solicitor's letter
The banking letter
"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."
Paragraph 245AA and policy documents
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".
Conclusions