Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 00295 (IAC); Case Summary

In Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 00295 (IAC) the appellant held leave to remain as a Tier 1 (Post-Study Work) migrant and applied for further leave to remain in the Tier 1 (Entrepreneur) category of the points-based system. He applied together with another applicant as one half of an entrepreneurial team.

The appellant sought to demonstrate that he had access to £50,000 in investment funds by reference to both his own finances and those of his team member. In support of his application, he provided two bank letters, one from his own bank (Lloyds TSB) and one from his team member's bank (Santander).

The Immigration Rules set out at paragraph 41-SD(a)(i) of Appendix A various mandatory requirements in terms of the content and format of the letters from the financial institutions. In particular, sub-paragraphs (6), (9) and (10) prescribed that the necessary letters from the financial institutions holding the funds must:

• state the applicant's name;
• confirm the amount of money provided to the applicant from any third party that is held in such institution; and
• confirm the name of each third party and their contact details, including their full address, to include postal code, landline phone number and any email address.

The Home Office refused the appellant's application for leave to remain as a Tier 1 (Entrepreneur) on the basis that the Santander bank letter did not confirm that the appellant had access to his team member's funds as part of the £50,000.

On appeal to the Upper Tribunal, the appellant argued that paragraph 41-SD(a)(i) of Appendix A to the Immigration Rules should not be construed literally in order to avoid absurd results. It was submitted that the bank letter required by paragraph 41-SD(a)(i)(6), if this sub-paragraph was construed literally, was not capable of being provided by a United Kingdom bank by reason of privity of contract and the relationship of confidentiality between bank and customer. Thus, it was submitted, a literal interpretation must be avoided as it gave rise to an absurdity.

The specific contentions advanced on behalf of the appellant with reference to the contentious requirements listed in paragraph 41-SD(a)(i) were:

• In requirement (6), the word "applicant's" should be deleted and substituted by "account holder's", with deletion of all of the words following "name" where this first appears.
• In requirement (9), the words "provided to the applicant from any third party (if applicable)" should be deleted and substituted by "available to the account holder".
• In requirement (10), the words "third party" should be deleted and substituted by "account holder".

This exercise, it was submitted, would involve a purposive construction that was necessary to avoid absurdity or anomaly.

The Upper Tribunal held that the requirements listed in paragraph 41-SD(a)(i) of the Rules are to be construed reasonably and sensibly, in their full context. Approached in this way, the letters required from banks or other financial institutions are not designed to provide, and do not commit them to, any form of guarantee or assurance to any party. Rather, the function of the prescribed letters is to attest to the state of the relevant bank account on the date when they are written and to provide certain other items of information designed to confirm the authenticity of the application for entrepreneurial migrant status and its economic viability. There is no difficulty in the third party bank, with its customer's consent, expressing its understanding, based on the customer's instructions, that the use of specified funds in the customer's bank account/s is contemplated or proposed by the customer for the purpose of financing the applicant's proposed business venture. Accordingly, there was no substance in the argument that the relevant requirements contained in paragraph 41-SD(a)(i) produce an absurd result and must, therefore, be interpreted in some other manner.

As a second ground of appeal, the appellant further argued that there remains a "flexibility policy", independent of paragraph 245AA of the Immigration Rules, conferring a discretion on the relevant case worker to request further information or documents of the applicant. It was contended that, in essence, the error of law committed was a failure to appreciate the existence of this freestanding policy. The Upper Tribunal roundly rejected this argument, holding that the question of whether a policy exists is one of fact and there was no evidence that some policy on evidential flexibility, independent and freestanding of paragraph 245AA, had survived the introduction of that paragraph in the Immigration Rules.