Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA152802013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 June 2016
On 13 June 2016

Before

LORD TURNBULL
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

bassey moses bassey
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr P Corben, Counsel, instructed by St. Valchikwe Solicitors
DECISION AND REASONS
(1) We see no need for and do not make an order restricting reporting of this Decision.
(2) The respondent in this appeal, hereinafter "the claimant", is a citizen of Nigeria who appealed successfully to the First-tier Tribunal a decision of the appellant, hereinafter "the Secretary of State", on 22 April 2013 to refuse him leave to remain as a Tier 1 (Entrepreneur) Migrant under the points-based system. The Secretary of State was given permission to appeal to the Upper Tribunal. The Secretary of State's appeal succeeded before the Upper Tribunal. The First-tier Judge was found to have erred in law and the decision set aside and remade by the Upper Tribunal. It dismissed the appeal.
(3) The Secretary of State further appealed. The Upper Tribunal was required to determine two grounds of appeal but only determined one. It was agreed before the Court of Appeal that the ground it determined it determined wrongly and the claimant should have succeeded on that point. It followed that it was essential to determine properly the second ground.
(4) By consent the Court of Appeal ordered that:
"The matter be remitted to the Upper Tribunal of the Immigration and Asylum Chamber for a hearing, pursuant to Section 14 of the Tribunals, Courts and Enforcement Act 2007, limited to whether the [claimant] can satisfy the detailed specific requirements in the Rules as further described in paragraph 18(G)(2) of the determination of the Upper Tribunal dated 3 March 2014".
(5) We set out below the full terms of ground 2 as recorded in paragraph 18 of the Determination and Reasons:
(6) "Ground 2: On the evidence submitted with the application, the [claimant] had failed to satisfy a number of detailed specific requirements in the Rules, namely (i) a letter from a financial institution holding the relevant funds confirming the amount available to the applicant and specifically naming him; and (ii) a contract incorporating the applicant's name, the evidential flexibility policy having no application."
(7) It is, we find, alarmingly easy in cases under the points-based system for the Tribunal to confuse firstly, any informed reader and, secondly, itself by slavishly setting out exacting Rules identified by a series of numbers and letters in the system at which, although usually logical can often perplex.
(8) There was a clear measure of agreement between the parties and accordingly we have decided not to set out every relevant point in great detail.
(9) The Rules required the claimant to show on one document that he had the prescribed sum of money for investment in the United Kingdom. It may be that the claimant did have sufficient money but that could only be deduced confidently by reading three documents and so the evidence did not satisfy the Rules. Similarly, contrary to the requirements of the Rules, he did not have a written contract identifying him as the contracting party. He appeared to be acting behind the corporate veil. He may well have been planning to engage in a lawful activity but he did not present his evidence in a compliant way.
(10) There was really no argument to be made to say that the documents that were provided did meet the strict requirements of the Rules. By simple inspection they do not. Further it was not properly arguable that the evidential flexibility policy in force at the relevant time obliged the Secretary of State to make further enquiries.
(11) Mr Corben argued that the Secretary of State had changed her polices and if the policies presently in force were in force when the application was made the application would have succeeded. We see no need to decide that point in this appeal but we incline to the view that he is correct.
(12) Mr Corben argued that the Secretary of State had not made her policies more generous as an act of unnecessary benevolence but because the other policies were so strict that they did not comply with the common law requirements of fairness. The Secretary of State did not discharge her common law obligation to act fairly by relying on a policy if that policy was inherently unfair.
(13) Whilst that may well be a correct statement of law we cannot agree that it is relevant in this case.
(14) The plain fact is that the strict requirements of the Rules were not met and there was nothing unfair about their requirements or the practical operation of the policy. That the Secretary of State has since loosened the requirements of the Rules might suggest that she thought the Rules were unsatisfactory but that is entirely different from an admission that they were unfair and neither is it evidence of the same. The Secretary of State is perfectly entitled to prescribe strict requirements. She has to consider many factors including devising a system that is workable. If the applicant had organised his affairs to satisfy the requirements of the Rules the application would have succeeded. If he cannot organise his affairs to meet the requirements of the Rules his application cannot succeed. If he could have done but did not then it is no doubt personally frustrating but that does not make the scheme unfair. It really is as simple as that.
(15) If follows that although we appreciate Mr Corben's measured persistence, we cannot agree with his submissions.
(16) It follows that we must and do find that the Secretary of State's second ground is made out. The First-tier Tribunal could not have decided properly on the evidence that the claimant met the requirements of the Rules. The application was properly refused. The First-tier Tribunal should have dismissed the appeal and we substitute a decision to that effect.
(17) We say additionally that at the start of the hearing there was discussion about the proper progress of the appeal because the claimant may well (we put it no higher than that) be qualified to remain on the basis of his long residence in the United Kingdom. Having discussed the case with us Mr Corben decided not to make an application to amend his grounds of appeal. We are however happy to confirm that in dismissing the claimant's appeal we make no criticism of the claimant beyond saying that he made an application that could not succeed because he did not satisfy the exact requirements of the Rules.
(18) We also indicated that we should, in all the circumstances, promulgate our decision quickly and that we have done.
Notice of Decision
(19) The Secretary of State's appeal to the Upper Tribunal is allowed. We set aside the decision of the First-tier Tribunal and substitute a decision dismissing the claimant's appeal against the Secretary of State's decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 10 June 2016