NB (Pakistan) v. Secretary of State for the Home Department [2013] EWCA Civ 1280 – case summary

In what we believe is the first reported case concerning an application for leave to remain as a Tier 1 (Entrepreneur) Migrant under the points-based system, in NB (Pakistan) v. Secretary of State for the Home Department [2013] EWCA Civ 1280 the Court of Appeal has refused a renewed application for permission to appeal.

The applicant’s application for leave to remain as a Tier 1 (Entrepreneur) Migrant was refused on two principal grounds: first, that he was unable to show that he had under his own control £800 for a 90-day period ending one month before the date of the application, as required by paragraph 1A of Appendix C, for which he could have claimed ten points; and, second, that he had failed to establish by the submission of original documents his claim to have access to £200,000 from an uncle of one of his friends, as required by Appendix A.

The First-tier Tribunal had held that by virtue of section 19 of the UK Borders Act 2007, it could only consider evidence that had been submitted with the original application. The applicant accepted that he did not satisfy the requirement to have £800 in his own bank account for the necessary period before the date of the application. He offered evidence that his father had the funds and was willing to support him, but the Tribunal held that that was not sufficient to satisfy the requirements of the rules. The evidence that provided for the existence of investment money took the form of photocopies rather than original documents. The First-tier Tribunal held that the applicant had failed to produce the materials required to obtain the necessary number of points and that the decision of the Secretary of State was therefore lawful.

The applicant appealed to the Upper Tribunal, which dismissed his appeal on the grounds that it was necessary for a Tier 1 Migrant to show that he had £800 under his own control for three months ending one month before the date of the application. That was something which the applicant had accepted that he was unable to do. However, by the time of the hearing, he was able to produce better evidence that he had access to the required amount of investment money.

The applicant sought permission to appeal to the Court of Appeal raising the following four points:

• that the evidence that his father had the necessary funds and was willing to support him was sufficient to satisfy the rules;
• that the Upper Tribunal was wrong to hold that the funds had to be in his own possession and not merely available to him;
• that the Secretary of State should have applied the “evidential flexibility policy” and should have invited him to provide different evidence of the funds held by him, perhaps in the form of an agreement for an overdraft;
• that the Secretary of State had reached her decision in breach of the requirement of fairness.

The Court of Appeal held that none of the points taken by the applicant had any real prospect of success. Lord Justice Moore-Bick concluded that the Immigration Rules, of which Appendix C forms part, must be read in a sensible manner. Paragraph 1A, although not referred to in Rule 245DD, refers to all cases where an applicant is required to obtain points under Appendix C, and plainly applied to this case. Paragraph 1A was intended to lay down the requirements which must be met if an applicant is to be awarded any points under paragraph 2. If that were not the case, paragraph 1A would be redundant.

The Court also held that the requirement that the applicant must have had funds “under his own control” for 90 days naturally means that he has a legal right to dispose of them throughout that period. Contrary to the submissions of the applicant, control is not the same as influence, nor can it be construed in that manner. The words “own control” can connote an enforceable right to decide how the funds are disposed of.  Funds held in the account of a third party are not under the control, in that sense, of an applicant unless he has the right to require the bank or person by whom they are held to act on his instructions. That is emphasised by the use of the expression “under his own control”, which naturally excludes control exercised by a third party.

For advice or assistance with preparing an application or appeal in respect of the Tier 1 (Entrepreneur) category of the points-based system, contact our immigration barristers in London direct on 0203 617 9173 or by email info@richmondchambers.com.