Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA 20441 2012
IA 20442 2012
IA 02443 2012
IA 20444 2012
IA 20445 2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 5 March 2013 and 11 June 2013
On 24 June 2013

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ARSHAD IQBAL
YASMEEN IQBAL
ALISHA ARSHAD
AMAN ARSHAD
KHADIJA ARSHAD
Respondents
Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr M Iqbal, Counsel, instructed by Jinnah Solicitors
DETERMINATION AND REASONS
1. In this case the appellant (hereinafter “the Secretary of State”) has appealed a decision of the First-tier Tribunal allowing the appeals of the respondents (hereinafter “the claimants”) against a decision of Secretary of State to refuse to extend their leave to be in the United Kingdom as a Tier 1 (Entrepreneur ) Migrant or his dependants as the case may be.
2. The appeal was heard by First-tier Tribunal Judge Tiffen and she allowed the appeal. She said that the respondents could not meet the requirements of the Rules, and in order to make sense of the Rules she imposed a purposive construction on the Rules and made the decision that she did.

3. This was challenged by the Secretary of State and came before Deputy Judge Black who decided that the First-tier Tribunal had erred in law. She gave reasons for that decision and those reasons are part of this determination. We incorporate those reasons into the determination because it sets out more of the background of the case, as well as being a necessary part of our overall decision. The reasons set out below are very similar to but not precisely the same as those that have previously been disclosed to the parties with Directions following a hearing on 5 March 2013. In particular it accepts a factual error in the draft sent to the parties that was identified in the appellants’ further skeleton argument. If either party is considering an appeal the relevant decision is that set out here and below.
4. Judge Black said:
1. This is an appeal against a determination of First-tier Tribunal Judge R Tiffen who allowed the present respondents’ appeal following a hearing at Taylor House in a determination promulgated on 11 December 2012.
2. The Secretary of State is the appellant in these proceedings. Permission to appeal was granted on 21 December 2012 by First-tier Tribunal Judge Saffer who found that there was an arguable error of law in that the Tribunal was wrong in its construction of a mandatory Rule.
3. The matter comes before me today for the purposes of a hearing to enable me to consider whether or not the judge made an error of law that is material to the decision to allow the appeal, and if so, to substitute a decision.
Background
4. Mr Iqbal who is a citizen of Pakistan made a combined application on 14 April 2012 for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant under the points-based scheme and for a biometric residence permit. Applications were also made by dependant members of his family.
5. The applications were refused by the Secretary of State on 13 September 2012 under paragraph 245DD(b) of HC 395 (as amended).
6. The notice of refusal stated that a decision had been made to remove the appellant from the UK by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
7. The Secretary of State relied paragraph 41-SD(a) that he failed to establish that funds (£208,377.90) were being made available to him because the bank letters sent in support of funds held by Mr Muhammad Asghar Shah (Bank Islami Pakistan Ltd and Silkbank) and Mr Nabeel Ahmed Mirza (United Bank Ltd) did not state the appellant’s name on the letters as required. The requirements specified under Appendix A of the Immigration Rules were not met.
Grounds
8. In her determination First-tier Tribunal Judge Tiffen found that paragraph 41-SD(a)(6) “has not and cannot be met”. The grounds of appeal submit that the judge then continued to interpret what the intention of parliament must have been and allowed the appeal under the Immigration Rules notwithstanding that she found that the appellant could not meet the requirements of those Rules approved by parliament.
9. Mr Jarvis relied on three decisions, RS (Pakistan) v SSHD [2011] EWCA Civ 434, T (entry clearance – Section 55 BCIA 2009) Jamaica [2011] UKUT 483 (IAC) and the Supreme Court judgment of Ahmed Mahad [2009] UKSC 16.
Application to amend grounds of appeal
10. Mr Jarvis made a preliminary application to amend the grounds of appeal under Rule 5 of the Upper Tribunal Procedure Rules 2008. He sought to amend the grounds of appeal to argue that the First-tier Judge did not have jurisdiction to find that the actual wording of the relevant sub-Rule was unlawful and that this amounted to a perverse and/or irrational decision.
11. Mr Iqbal opposed the application arguing that the Secretary of State had had ample opportunity in which to address the point, permission to appeal having been granted on 21 December 2012. If the Secretary of State were allowed to amend the Rules the appellant would have no sufficient notice in which to respond. Mr Iqbal’s case had been prepared in the skeleton argument which revolved around all arguments and grounds put forward thus far. Further research would be necessary in order to prepare a response to the appellant’s proposed amendment which related to Rules of statutory interpretation.
Decision on Application to Amend Grounds of Appeal
11. I decided to refuse the application for leave to amend the grounds of appeal. I considered that the Secretary of State had had ample opportunity to fully consider all grounds of appeal and to prepare the same in advance of the hearing in compliance with the directions made. The main appeal issue was clear and could be dealt with at the hearing before me. It would be unfair for the grounds to be amended at such a late stage as those representing Mr Iqbal had had no notice of this and no opportunity to prepare their arguments on the separate point of jurisdiction.
Submissions Re Error of Law
12. Mr Jarvis submitted that the requirements under paragraph 41-SD in Appendix A are mandatory. The judge misdirected herself as she accepted that the requirements were not met but she sought then to interpret the Rule and parliament’s intention for herself. Thereafter she decided to allow the appeal.
13. Mr Jarvis submitted that the judge interpreted or read the construction of Section 41-SD in a way to make it lawful but she was unclear as to what conclusion she reached in consequence of her findings with regard to Section 41-SD. It was perverse to find that the Rule was unlawful and then go on to allow the appeal under the Rules. The judge had not concluded that the decision was not in accordance with the law.
14. It was submitted that the judge considered the evidence of the two letters from the two banks in Pakistan. She interpreted this as being enough evidence to show that the requirements of the sub-Rule were met and further that the requirements of the Rules were contrary to financial Regulations in Pakistan. The two letters indicated that it was the internal banking policy of the two banks not to show the name of the appellant on the bank letters for third parties.
15. Mr Jarvis submitted that the judge focused on the effect of the sub-Rule on this appellant and for Pakistani nationals. The Rule applied to all applicants and so to consider it from the limited perspective of Pakistani nationals generally was unlawful. There had been no evidence adduced that the Rule affected others beyond this appellant or other Pakistani nationals in general who banked with the particular banks.
16. The judge failed to consider the scheme overall in paragraph 41-SD which was unambiguous. The scheme had been set out specifically to assist applicants to show what they needed to satisfy to meet the Rules and therefore allows for consistent and efficient consideration of all applications. The Secretary of State intended to provide a transparent and efficient process for these applications as has been observed and accepted by the Court of Appeal. The judge’s approach was wrong to the extent that she concluded that the appellant on balance complied with the purpose behind the Rules but she ignored the actual sub-Rule.
Submissions from Mr Iqbal
17. Mr Iqbal submitted that the banks in question do not allow for the issue of a letter with the name of the applicant on it. In the event that this is banking policy Mr Iqbal questioned how an applicant in these circumstances would be able to meet the Rule.
18. He relied on his skeleton argument and quoted Lord Brown in the Supreme Court decision of Mahad. Further, he referred to a recent ministerial statement by Mark Harper (Minister for Immigration) who on 22 November 2012 arguably made it clear that the purpose of the requirements of the Immigration Rules is “to ensure entrepreneurs and investors genuinely have access to the funds they claim they do”.
19. Mr Iqbal also cited Lord Bingham’s dicta in Huang v SSHD [2007] UKHL 11 at paragraph 17 and the more recent Upper Tribunal decision of Izuazu (Article 8 – new Rules) [2013] UKUT 45 (IAC). Mr Iqbal argued that a proper construction of the Rule was possible from beginning to end and the approach would be to decide what the Rule fundamentally requires and to look at this having regard to the intention of the Secretary of State. He submitted that the Secretary of State’s intention was to ensure that potential investors genuinely had access to the funds. Mr Arshad Iqbal had met the intentions and purpose behind the Rule and failed only to meet the specific requirements under paragraph 41-SD(a)(6).
20. It was submitted that the judge had not found that this appellant could not meet the Rule but that in general the Rule cannot be met in isolation, and the Rule could not be met. This was an important distinction. The Judge’s approach was to interpret the sub-Rule purposively to give effect to the respondent’s intentions and as such this should have been welcomed by the Secretary of State.
21. Further it was submitted that the Rules were not subject to active debate in parliament and parliament may not have envisaged the consequences of this sub-Rule. Mr Iqbal identified the evidence to show that Mr Iqbal had met the requirements of the Rules. There was a genuine intention to get money into the UK and there was documentary evidence from which such intentions could be inferred, all of which had been considered by the First-tier Judge.
In response
22 Mr Jarvis observed that this hearing was to consider the issue of the error of law. There was a lack of precision in the judge’s findings and she has effectively reconstructed the Rule by imposing her own interpretation.
23. Mr Jarvis relied on Mahad. He referred to the observations made by Lord Bingham and submitted that the quote set out in paragraph 8 of Mr Iqbal’s skeleton argument must be seen in the context of the further qualification made by Lord Bingham.
24. Mr Jarvis submitted that the First-tier cannot routinely ignore or rephrase the sub-Rules as this would lead to increased litigation in the courts. Rewording or ignoring the Rules specified cannot be right. How the sub-Rule is to be construed has been done by the Secretary of State through the negative resolution process and the requirement in these Rules is that the name of the applicant must appear on the specified financial documentation. The sub-Rule effects all persons making such applications not simply Mr Arshad Iqbal. The policy adopted by the two named banks was not indicative of broad financial Regulations. There was no evidence to support that this is a banking policy in other areas of the world.
Discussion
25. The grounds of appeal challenge the decision and reasoning of Judge Tiffen who allowed the appeal under the Immigration Rules but yet found on the facts that Mr Arshad Iqbal was unable to meet the specified requirements of the sub-Rule under Appendix A set out in paragraph 41-SD(a)(i)(6). The Judge found that the evidence established that he had in effect met the purpose and intention behind the Rules.
26. Mr Arshad Iqbal adduced evidence in the form of letters from three banks regulated by the State Bank of Pakistan namely Bank Islami Pakistan Ltd, Silkbank and United Bank Ltd. The sub rule requires that letter from each financial institution holding the funds must confirm the amount of money available to the applicant and must “state the applicant’s name, and his team partner’s name if the applicant is applying under the provisions in paragraph 52 of this Appendix”. It was submitted by Mr Iqbal that the banking Regulations in Pakistan do not allow the banks to state the applicant’s name on the bank letter in the way in which the respondent requires. Each of the three named banks, Silkbank, United Bank Ltd and BankIslami were unable to meet the requirements. Those banks have confirmed that the money can be transferred to the UK. The internal banking policy is set out in two letters dated 1 August 2012 in which bank officials from the two respective banks have stated “we are unable to mention the name of the third party or person or entrepreneur application according to the bank policy”. There was no evidence before the Judge to show that the requirements in the Rules cannot be met by all of the banks in Pakistan and/or other countries worldwide.
27. I have referred to the Supreme Court decision in Mahad at paragraph 10 where Lord Brown was considering the proper approach to the construction of the Rules and quoted Lord Hoffman in Odelola v SSHD [2009] 1 WLR 1230, 1233 (paragraph 4):
“ “Like any other question of construction, this [whether a Rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the Rule, construed against the relevant background. That involves a consideration of the Immigration Rules as a whole and the function which they serve in the administration of immigration policy”.
That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the Rules) had said in Odelola in the Court of Appeal [2009] 1 WLR 126 and indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The respondent’s Counsel readily accepted what she meant in her written case by the proposition “the question of interpretation is ... what the Secretary of State intended his policy to be” was that the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under Section 3(2) of the Immigration Act 1971, the Secretary of State has to lay Rules before parliament which then had the opportunity to disapprove them. True, as I observed in Odelola (paragraph 33): “The question is what the Secretary of State intended. The Rules are her Rules.” But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from Immigration Directorate Instructions (IDIs) issued intermittently to guide Immigration Officers in their application of the Rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 act which provides that:
“In the exercise of their functions under this act Immigration Officers shall act in accordance with such Rules (not inconsistent with the Immigration Rules) as may be given then by the Secretary of State ...”. “
28. I find that the approach and decision taken by Judge Tiffen is flawed. The Immigration Rules including the sub-Rule set out in Appendix A exist in order to specify the criteria and requirements that it is necessary to meet when making an application. The detailed and specific provisions make it clear to the applicant what documentation they have to produce and in what format. This is to simplify and to clarify the requirements for the applicants and equally to ensure fairness and consistency in the decision making process. The requirements in the relevant Rules are expressed clearly in the Immigration Rules that have been approved by parliament. They are not therefore open to interpretation by the Tribunal for the judge to decide what the Secretary of State may have meant or intended. It is not the role of the First-tier Tribunal to rewrite legislation or to make assumptions as to the intentions behind the Rules. There was no evidence to show that applicants generally would not be able to meet the specific requirements as to the bank letters for third parties but there was no evidence that any of the three banks identified by the appellants was able to meet the specific requirements of the rules. There was no evidence adduced to show that in other countries the requirements contravened financial rules or policies.
Decision and directions
29. I find that Judge Tiffen made an error of law that is material to the decision to allow the appeal.
30. The determination is set aside.
31. The appeal be relisted for hearing by way of submissions only before me.
5. In the event the appeal came before a panel comprising Deputy Judge Black and myself.
6. The key point of contention is the particular requirement of the Immigration Rules set out at Appendix A paragraph 41-SD(a)(i)(6) of HC 395. This requires that the documents produced in support of the application:
“state the applicant’s name and his team partners name if the applicant is applying under the provisions of paragraph 52 of this Appendix”.
7. It is common ground that the documents relied upon by the claimants did not comply with this Rule. The claimants’ case was simple. It was that they could not satisfy the requirements of the Rules because the banks would not oblige. It was because of this evidence that Judge Tiffen made the decision that she did.
8. When Judge Black decided that the Rule was clear and should have been applied she could have dismissed the appeal without a further hearing but she chose not to do that. Rather she gave further directions and listed the appeal for a further hearing. The directions provided for either party to adduce further evidence that was relevant to the point of contention. Neither party has taken advantage of this opportunity. The Secretary of State has produced some evidence from Pakistan to say that many applicants do comply with the Rule and that particular banks said that they could issue appropriate documents. Conversely the claimants have produced contrary evidence on the practices of a particular bank. Neither of the documents containing the evidence was disclosed much before the hearing. The Secretary of State delayed for the perfectly sensible that she was trying to get the best evidence. The claimants responded quickly to the evidence but not until the day before the hearing, so nobody had time to investigate their counter claims, and we deliberately did not resolve them. The additional evidence had not been produced in accordance with directions. The parties could not rely on it without a further adjournment and we determined the appeal by ruling on the law.
9. We do, however, note that what we do not have is clear evidence from the claimants that it is contrary to the law of Pakistan or contrary to the regulations of the banking industry to provide evidence in a way that complies with the evidence of 41-SD(a)(i)(6), and that we find is a telling omission.
10. We put it no higher than that because it is our view that even if the Rules are written in a way that means no one can meet them, or at least no one from Pakistan can meet them, it is not something that is in our power to change. If the Rules are unsatisfactory then there might be a remedy in the High Court of Parliament but we are certainly not advising either of those things. What we are doing is saying if it is a problem it is not one we can address.
11. Mr Iqbal tried to persuade us that it was not necessary to satisfy the requirements of paragraph 41-SD(a)(i)(6). He based this argument on a carefully prepared and patient examination of the Rules which he said supported his contention that it was satisfactory if a person met the requirements of 41-SD(b), and if the person did that it was not necessary to satisfy the requirements of 41-SD(a). We follow that argument which is presented with meticulous care, but we disagree with it.
12. We are satisfied that a plain reading of paragraph 41-SD requires a person to meet paragraph 41-SD(a) and, if appropriate, (b) and possibly (c). It might be that (b) and (c) are alternatives to each other; that is not something that we have to decide in this appeal. We are satisfied that in every case where paragraph 41-SD applies then paragraph 41-SD(a) has to be satisfied.
13. We think that this is the plain meaning of the Rule but we are reinforced in this construction by looking at 41-SD(a)(i)(8),(9) and (10), which on our reading, plainly contemplate the situation of a person relying either on third party funds or in part on their own funds and in part on third party funds, and still clearly having to meet the requirements of 41-SD(a).
14. It follows therefore that we reject Mr Iqbal’s contention that the claimant did not have to comply with this Rule. We are satisfied that he did have to satisfy the rules as interpreted by the Secretary of State but he could not and that, therefore, on the findings of fact made by the First-tier Tribunal the proper decision would have been to dismiss the appeal. If his appeal is dismissed the other appeals are necessarily dismissed consequentially because they are dependent on him.
15. It follows therefore that we set aside the decision of the First-tier Tribunal and substitute a decision dismissing the claimants’ appeals.
16. Mr Iqbal has been very helpful taking us through a difficult area of law. Nobody has been assisted by the draftsman but we have reached the decision we have for the reasons given.
17. There were before the First-tier Tribunal two decisions;, firstly a decision under the Rules to refuse the leave sought and, secondly, an appeal against a decision to remove. It is quite plain that when Judge Tiffen allowed the appeal she allowed both appeals, so the decision against the appeal to remove was not challenged. It is not affected by our decision today. If the Secretary of State wants to remove the claimants she has to make a fresh decision.
18. It was not argued before us that the claimants appeals should have been allowed with reference to article 8 of the European Convention on Human Rights and, given that they have only been in the United Kingdom since October 2009 any such claim would clearly have failed.
Decision
The decision of the First-tier Tribunal to allow the claimants appeals against leave to remain is set aside.
A decision to dismiss the claimants’ appeals against the decision to refuse leave is substituted.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 21 June 2013