The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11312/2013


Heard at Field House
Determination Promulgated
On 4th December 2013
On 9th December 2013


upper tribunal judge MARTIN






For the Appellant: Mr A Miah (instructed by Lee Valley Solicitors)
For the Respondent: Ms S Ong (Senior Home Office Presenting Officer)


1. This is an appeal to the Upper Tribunal by the Appellant against a decision of the First-tier Tribunal (Judge Zahed) promulgated on 15th October 2013. The determination followed a hearing at Hatton Cross on 13th September when the Appellant was represented by Counsel and Secretary of State by a Home Office Presenting Officer.
2. The Appellant, a Pakistani national born on 23rd April 1982, made an application on 26th October 2012 for leave to remain as a Tier 1 (Entrepreneur) Migrant. In a decision dated 18th March 2013 the Respondent rejected his application and it was his appeal against that decision which came before the First-tier Tribunal.
3. Permission to appeal was granted and Mr Miah acknowledged that the only ground upon which permission was granted was that the Secretary of State had failed to request missing information in accordance with the evidential flexibility policy and Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC) and that the Judge had misdirected himself on that basis.
4. The Secretary of State in this case had rejected the application in relation to funds on the basis that the documentation concerning third-party money was not in the required format and thus did not demonstrate that the Appellant had access to the requisite funds. The Judge referred himself at paragraph 6 to Rodriguez and at paragraph 7 said that Rodriguez indicated that an applicant should be given an opportunity by the Secretary of State to produce any missing documents such as a bank statement missing from a sequence a bank statements. In addition to Rodriguez there is the Secretary of State's evidential flexibility policy setting out the circumstances in which further enquiries will be made; one of which being that there has to be reason to believe that the required document is in existence.
5. At paragraph 8 of the determination the Judge noted that the missing documentation in this case was not one of a series of documents and the document in fact did not exist.
6. The requirement of the Rules is that an applicant must produce specified documents in a specified format. The requirements are set out in the Letter of Refusal. An applicant must produce:
(i) A letter from each financial institution holding the applicant's funds, to confirm the amount of money available to the applicant, or the two applicants if they have formed an entrepreneurial team.
Each letter must also confirm each of the following details.
(i) A letter from each financial institution holding the funds, to confirm the amount of money available to the applicant (or the entrepreneurial team if applying under the provisions in paragraph 52 of this Appendix). Each letter must:
(1) be an original document and not a copy,
(2) be on the institution's official headed paper,
(3) have been issued by an authorised official of that institution,
(4) have been produced within three months immediately before the date of your application
(5) confirm that institution is regulated by the appropriate body,
(6) state the applicant's name and his team partner's name if the applicant is applying under the provisions in paragraph 52 this Appendix,
(7) state the date of the document,
(8) confirm the amount of money available from the applicant's own funds (if applicable) that are held in that institution,
(9) confirm the amount of money provided to the applicant from any third party (if applicable) that is held in that institution,
(10) confirm the name of each third-party and their contact details, including their full address including postcode, landline phone number and any e-mail address, and
(11) confirm that if the money is not in an institution regulated by the FSA, the money can be transferred to the UK.
7. It was the Appellant's case and remains his case that the required document cannot be provided. The Judge therefore correctly noted that the document did not exist and therefore the evidential flexibility policy could not have been applicable. There is no error of law in that finding.
8. Mr Miah then sought to argue that the Immigration Rule itself, requiring specified documents when such documents cannot be obtained, is inherently unfair. That however was not an argument advanced by experienced Counsel before the First-tier Tribunal. An argument that the Immigration Rules are inherently unfair is a very significant issue and if it was to be raised should have been argued before the First-tier Tribunal. A Judge cannot be criticised for failing to deal with a point not raised in the grounds of appeal or before him and which cannot be said to be Robinson obvious.
9. Having read the grounds seeking permission to appeal and the determination with care and hearing oral submissions from Mr Miah I find that the First-tier Tribunal did not err in law in its determination of this appeal and the First-tier Tribunal having made no error of law, its determination stands. The appeal to the Upper Tribunal is therefore dismissed.

Signed Date 4th December 2013

Upper Tribunal Judge Martin