Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45917/2014

THE IMMIGRATION ACTS

Heard at Manchester IAC
Determination Promulgated
On 31st March 2016
On 7th April 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

AIDELOGIE IGHODARO
Respondent

Representation:

For the Appellant: Mr G Harrison, Senior Home Office Presenting Officer
For the Respondent: Mr J Holt, counsel, instructed by Westkin Associates

DETERMINATION AND REASONS

1. In a decision promulgated on 7th May 2015, First-tier Tribunal judge Levin allowed the appeal of Mr Ighodaro against the decision of the SSHD refusing to grant him leave to remain as a Tier 1 (Entrepreneur) Migrant and to remove him to Nigeria under s47 Immigration and Asylum Act 2006 dated 17th October 2014.

2. Mr Ighodaro first arrived in the UK as a student on a visa valid until 31st January 2012. He applied for and was granted further leave to remain on similar conditions until 31st May 2012. On 21st August 2012 he was granted leave to remain as a Tier 1 (Post study work) Migrant until 21st August 2014. On 21st August 2014 he applied for further leave to remain as a Tier 1 (Entrepreneur) Migrant and it is the refusal of that application that led to this appeal. Mr Ighodaro was awarded 0 points for funds disposable in the UK (as oppose to the 25 claimed) on the basis that on the documents he had provided he did not qualify for points in that area. In particular, the SSHD stated that he had not submitted a letter from a legal representative which validated his signature on the third party declaration of Mrs Agatha Egbeziemi Obadan and had therefore not submitted the specified evidence as listed under paragraph 41-SD to establish he had the funds he was claiming. As a consequence, the SSHD had not awarded him any point for Attributes.

3. The SSHD was not represented before the First-tier Tribunal but provided written submissions. In addition to the reason for refusal set out in the decision she also relied upon a requirement to comply with paragraph 41-SD(d)(i)(3).

4. The First-tier Tribunal judge considered the appeal in three stages. He made findings, which are not disputed, that the appellant provided a declaration from a third party which meets the requirements of paragraph 41-SD (d)(i)(3). He found that the lawyers' letter confirmed the validity of the third party's signature but does not confirm the validity of the signature of Mr Ighodaro. He then considered whether paragraph 41-SD(d)(ii) required the legal representative to confirm the validity of the signature of Mr Ighodaro, as contended by the SSHD.

5. The First-tier Tribunal correctly identified that this was a question of construction. He set out the competing arguments and concluded that 41-SD (d)(ii) did not require the legal representative to confirm the validity of Mr Ighodaro's signature for the following reasons:

22. ?..
(a) Firstly if the letter were required to confirm the validity of the applicant's signature then I find it should have been specified as one of the requirements of the letter listed in sub-paragraphs (1) to (7).
(b) Secondly, the Rules requires the letter to be from a legal representative permitted to practice in the country where the third party money is. Given that the third party and the money is in Nigeria and [Mr Ighodaro] is in the United Kingdom the requirement for the legal representative to verify [Mr Ighodaro's] signature makes no sense whatsoever.
(c) thirdly, the requirement of a letter from a legal representative to verify the signature of the third party funding the application, particularly in circumstances where the third party is frequently abroad, is to ensure that the funding is genuinely available and that the declaration of the availability of funding has been genuinely given by the third party. It is difficult to see what useful purpose the confirmation of [Mr Ighodaro's} signature can serve and the Rules should be construed in as purposeful manner. In that regard I have followed the findings of the Upper Tribunal in the case of Durrani (Entrepreneurs; bank letters: evidential flexibility) [2014] UKUT 00295 (IAC)??.
(d) Fourthly, the Rule at best is ambiguous and accordingly any ambiguity should be construed against its author and therefore in favour of [Mr Ighodaro] (the so-called contra preferentem rule).

6. The SSHD in her grounds seeking permission to appeal relies on the following assertions:
Re 22 (a) - the First-tier Tribunal gave a speculative opinion as to what he thinks the Rules should have said as oppose to what they do say;
Re 22 (b) - that the First-tier Tribunal judge should have dealt with the Rule as printed and not whether in his opinion it made sense;
Re 22 (c) - the comparison with Durrani was misconceived and in any event a purposive interpretation of the immigration rules was a misdirection in law; and
Re 22(d) the contra preferentem rule was based on contract law and had no place in immigration law.

7. Both parties accepted that the point before me was a very narrow one; there was no challenge to the factual matrix as found and the only issue was whether the legal representative was required to verify the validity of Mr Ighodaro's signature on the third party declaration. 41-SD(d)(ii) is written in very specific terms:

A letter from a legal representative, 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),
(6) that the declaration from the third party is signed and valid, and
(7) if the third party is not a Venture Capital Firm, Seed Funding Competition or UK or Devolved Government Department (or intermediary public body authorised to award funds from that 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.

8. The mandatory requirements are set out in sub paragraphs (1) to (7). It is not mandatory that the legal representative verify the signature of the Entrepreneur. There is reference at the commencement of 41-SD(d)(ii) to 'confirming the validity of signatures on each third party declaration provided, which confirms the declaration(s) from the third party or parties contains the signatures of the people stated'. The respondent's submission before the First-tier Tribunal was that this meant that the legal representative must confirm all the signatures on the third party declaration.

9. Judge Levin considered this submission in the context of the reality of such documentation and the requirement for such documentation. There are specific mandatory requirements in sub paragraphs (1) to (7) and this requirement is not amongst them. The requirement is for a legal representative in either the country where the third party is or where the money is. Since an applicant in Mr Ighodaro's position was not in the country where the money is or where the third party is, the judge was correct to say that in the context of the purpose of the rule which is to verify that the money does actually exist, then such a requirement does not make sense. To reach an alternative conclusion would permit indeed possibly require, a legal representative to reach such a conclusion on at least one copy document because the applicant was not present, such a course of verification not being permissible.

10. In so far as the judge the contra preferentem rule, this is not of relevance. Such a rule is almost always applied to contracts where an ambiguous clause has been inserted; the ambiguity is held against the offerror of the clause. Although it can be said that the paragraph of Appendix A in question may be ambiguous, it is very unlikely that the contra preferentem rule should be applied when considering the construction of an Immigration Rule.

11. In so far as the case of Durrani is relied upon this refers to the Rules being construed reasonably and sensibly. Durrani was substantively concerned with the production of bank letters and the potential position that banks were being placed in in terms of guarantees etc; that is not the case here; rather the Rule should be read sensibly and reasonably in terms of the purpose of the Rule. There is no question of the judge having interpreted the Rules as he wished it to be or speculating as to its construction. In so far as there was any ambiguity because of the use of the words "confirm the validity of signatures" this has to be read with the whole of the Rule. When read in this manner there is no error of law in the First-tier Tribunal judge's interpretation.

12. There is no error of law in the First-tier Tribunal decision.

13. The appeal of the SSHD is dismissed.

Conclusions:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision; the decision of the First-tier Tribunal stands.

Date 31st March 2016
Upper Tribunal Judge Coker