Hazart Waqas Durrani v The Secretary of State for the Home Department

1. This appeal was heard together with three others, namely those in the cases of Kiran Fayyaz , Pavaiz Akhter and Chandni Maqbool . The last two mentioned cases form a unitary pair. Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 00296 (IAC) and Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 00297 (IAC) We shall make reference to our decision in the other cases where appropriate. The relevant provisions of the Immigration Rules are appended hereto.

2. The factors which are common to all of these appeals are that each of them has its origins in an unsuccessful application for entrepreneurial migrant status under the Immigration Rules and each raises issues about the construction of certain provisions of the Rules. Each case, however, possesses certain distinguishing features.

3. Hazrat Waqas Durrani (hereinafter “ this Appellant ”) is a national of Pakistan, aged 29 years. He has been lawfully present in the United Kingdom at all material times, dating from 01 September 2007. Initially, his immigration status was that of student. Latterly, he converted to the status of Tier 1 (Post-Study Work) Migrant, which was scheduled to expire on 23 February 2013. On this date, he applied for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. We shall, for convenience, describe this as “ entrepreneurial migrant status ”.

4. A distinctive feature of this Appellant’s application is that while it was made in his own name, there was another member of the proposed entrepreneurial team, Mr “R”. The Appellant was seeking to demonstrate the necessary funding (£50,000 in his case) by reference to both his own finances and those of Mr R. The documents accompanying the Appellant’s application included two letters from banks. The first of these, written by Lloyds TSB, stated: “ Dear Mr Durrani I am pleased to confirm the following details as at 22/02/2013. Account number – [specified] Balance - £27,043.10 ” The second was a letter from the Santander bank, in these terms: “ To whom it may concern, I am writing to confirm that Mr [R] holds an account with Santander numbered ………. This account is registered at his home address which we hold as …………………… The available balance as of 22 February 2013 is £25,014.77. ” While we have omitted the bank account number and the account holder’s address from the passage quoted, in the interests of confidentiality, both were provided.

5. By letter dated 04 April 2013, the UK Border Agency (“ UKBA ”) informed the Appellant that his application had been refused. The assessment was that whereas he had successfully claimed 10 points in respect of the English language requirement and 10 points in respect of the maintenance (funds) requirement, he qualified for an award of no points in relation to three other “ attributes ”, namely: (a) Access to funds as required (25 points). (b) Funds held in a regulated financial institution (25 points). (c) Funds disposal in the United Kingdom (25 points). In order for his application to succeed, it was necessary under the Rules that the Appellant achieve the maximum score of 25 points in respect of each of these attributes, a total of 75 points. His assessed score was nil.

6. Duly analysed, the Secretary of State’s decision proffered three reasons for refusing the Appellant’s application. The first was expressed in the following terms: “ …. You have not provided evidence from the bank holding Mr [R’s] funds to confirm that you have access to these funds as part of the £50,000. As a result you have only provided evidence to show that you have access to funds of £27,043.10. ” The second reason articulated for refusing the application was based on the “ specified documents ” requirement contained in paragraph 41-SD(c)(iii) of the Rules. Having rehearsed this provision, the letter continued: “ You have not provided any evidence of business activity in the form of advertising, newspaper articles or other publications and/or information from a trade fair or personal registration with a trade’s body. ” This was stated to be in contravention of the four prescribed “ specified documents ” requirements in question. The third reason for refusal was expressed in the following terms: “ You have claimed 25 points for funds held in a regulated financial institution under paragraph 245DD(b) and Appendix A of the Immigration Rules …. You have failed to provide sufficient acceptable evidence to demonstrate that you have access to sufficient funds. ” The second element of this reason was, in essence, a restatement of the substance of the first reason. Both expressed the Appellant’s failure to demonstrate access to the necessary minimum funding of £50,000.

7. The first ground of appeal pursued before the First-tier Tribunal (“ the FtT ”) was that paragraph 41-SD(a) of the Rules did not apply to this Appellant’s application. The Judge rejected this argument in [20] of his determination. We record that it was no longer pursued before this Tribunal. The second ground of appeal, advanced in the alternative, was that the requirement enshrined in paragraph 41-SD(a)(i)(9) should not be construed literally since to do so produces an absurd outcome. This argument was based on an assertion that the third party bank in question (Santander) would not confirm that Mr R’s funds were available to the Appellant as it was against their policy to do so. The Judge did not deal with the absurdity argument. The reason for this appears to be his construction of paragraph 41-SD(a)(i) to the effect that, in a “third party funder” case, the relevant financial institution does not have to certify that the requisite funds are available to the applicant: see [24]. The Judge did not focus specifically on what is required by sub-paragraph (9). Rather, he concentrated on sub-paragraphs (6) and (10), finding that the Santander letter was non-compliant with the Rules because it did not state the Appellant’s name, contrary to sub-paragraph (6), and did not state the account holder’s telephone number and email address, contrary to sub-paragraph (10).

8. Next, the Judge found that the Appellant’s application suffered from the further flaw of non-compliance with any of the requirements of paragraph 41-SD(c)(i), noting that this failure was accepted: although the Judge refers to requirement (i) rather than (iii), this appears to reflect the second reason proffered in the Secretary of State’s decision for refusing the Appellant’s application: thus the correct reference is requirement (iii). The final ground of appeal advanced was that the Secretary of State’s decision was not in accordance with the law on account of a failure by UKBA to make an “ evidential flexibility ” request for further documents. The Judge rejected this argument succinctly on the ground that, per paragraph 245AA(c) of the Rules, there is no obligation on UKBA to request documents in circumstances where “ a specified document has not been submitted ”.

9. In common with the conjoined appeals, the main argument canvassed on behalf of the Appellant in this appeal is that certain provisions of paragraph 41-SD(a)(i) of the Rules must be construed other than literally in order to avoid absurd results. We refer to [21]-[23] of our decision in Fayyaz , where the essence of this argument is rehearsed. The distinguishing feature of the present appeal is that the financial institutions concerned are English, not foreign, banks. In contrast, the other related appeals involve Pakistani banks. In this context, in support of the absurdity argument, Mr MacDonald QC submitted that, literally interpreted, the bank letter required by paragraph 41-SD(a)(i)(6) and the bank statement required by paragraph 41-SD(a)(ii)(4), if these sub-paragraphs are construed literally, are 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 gives rise to an absurdity. It was contended that this absurdity is avoided in the first of the aforementioned provisions by substituting “ account holder’s ” for “ applicant’s ” and deleting all of the words which follow “ name ” where this word first appears. As regards the second of the provisions under scrutiny, the proposal was more modest, involving only the substitution of “ account holder’s ” for “ applicant’s ”.

10. The second ground of appeal pursued in this forum was based on the “evidential flexibility” issue. It was not submitted that the Secretary of State’s refusal decision was not in accordance with the law by reference to paragraph 245AA of the Rules. Rather, the argument developed was that there remains a “flexibility policy”, independent of paragraph 245AA, 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. OUR CONCLUSIONS

11. It is common ground that it was incumbent on this Appellant to demonstrate the availability of a total sum of £50,000 minimum. The Rules permitted him to rely partly on his own financial resources and partly on those of a third party. In such circumstances, two separate bank letters are required. The first, from the applicant’s own bank, must state the applicant’s name and the amount of money available in his account/s: this is the clear and obvious meaning of the requirements enshrined in sub-paragraphs (6) and (8) of paragraph 41-SD(a)(i) of the Rules. The second letter must emanate from the third party’s bank. This must state two names: those of the applicant, per sub-paragraph (6) and the third party account holder, per sub-paragraph (10). This we consider to be the clear and obvious construction of these discrete requirements. By virtue of sub-paragraph (9), this second letter must also “ confirm the amount of money provided to the applicant from any third party (if applicable) that is held in that institution ”. In our decision in Fayyaz , we have construed the words “ provided to ” as denoting “ available to ”. See [28]:

12. All of 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, we consider it clear that 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. The letters do not commit either of the banks, whether the applicant’s own bank or that of the third party, to releasing a specified sum of money in order to finance the proposed business venture. Furthermore, we consider that there can be no conceivable 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. A simple statement to this effect, based on the customer’s instructions to the bank, is less onerous and intrusive than the disclosure of the customer’s name, account number and account balance. We consider that sub-paragraphs (6) and (9) are to be construed in this uncomplicated, reasonable and sensible fashion.

13. We are not persuaded that there is any principle of United Kingdom banking law precluding the construction of the relevant provisions of the Rules which we have espoused above. The relationship of banker and customer is contractual in nature. The bank owes a duty of loyalty and confidentiality to the customer, sometimes described as a duty of secrecy: see Jones – v – Law Society [1969] 1 Ch 1 , 9, per Diplock LJ. However, as the leading authority of Tournier – v – National Provincial and Union Bank of England [1924] 1 KB 461 makes clear, the implied duty of confidentiality does not apply where the customer consents to the bank disclosing the information in question. Bankes LJ, having asked, rhetorically, what are “ the qualifications of the contractual duty of secrecy implied in the relation of banker and customer ”, continued, at 473: “ On principle I think that the qualifications can be classed under four heads: (a) where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer .” [Our emphasis.] While the first of these four qualifications, or exceptions, could also conceivably, apply to paragraph 41-SD(i) and (ii) of the Immigration Rules, we would observe that we received no argument on this point. What is clear beyond peradventure, in our estimation, is that the disclosure by a bank of information pertaining to a customer’s account is lawful where the customer consents. No argument to the contrary was developed on behalf of the Appellant.

14. Thus we consider that, construed in this way, there is 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. There is no evidence that this construction gives rise to an absurdity or anomaly. Nor, viewed objectively and in the abstract, is any absurdity or anomaly to be inferred. Finally, we are satisfied that this construction of the provisions of the Rules under scrutiny is harmonious with the relevant principles of banking law. Accordingly, the first ground of appeal must fail.

15. The cornerstone of the second ground of appeal, properly analysed, consists of an assertion . The assertion is to the effect that an “evidential flexibility” policy of sorts survived the introduction of paragraph 245AA. The latter provision of the Rules came into operation on 06 September 2012. It is common ground that paragraph 245AA governed all of the applications for entrepreneurial migrant status generating this cluster of appeals. The FtT’s primary reason for rejecting this ground of appeal was the absence of any evidence that some policy, independent and freestanding of paragraph 245AA, also applied to these applications: see [32]. We endorse this reasoning and conclusion. In doing so, we highlight the distinction between argument and evidence. The question of whether a policy exists, in whatever context it arises, is a question of fact . This ground of appeal fails because it has no supporting evidence, direct or inferential.

16. In our judgement, this ground of appeal must fail on the further basis that whereas the Upper Tribunal in Rodriguez held that the two documents appended to its decision constituted a policy of the Secretary of State of wide ranging scope and effect, the Court of Appeal reversed this holding: see Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC) , [9] – [13] and Appendices and Secretary of State for the Home Department – v – Rodriguez [2014] EWCA Civ 2 , [82] – [101]. Insofar as necessary, we are also mindful of the additional evidence adduced on behalf of the Secretary of State in Rodriguez see [47] and [65]. While this was not admitted on the basis of the new evidence principles, we cannot pretend that it does not exist and were not invited to do so.

17. Thus, the Appellant’s appeal must be dismissed. To this we would add that the Appellant’s application and both ensuing appeals were, in our estimation, doomed to failure in any event on account of the egregious and irremediable failure to comply with all of the requirements enshrined in paragraph 41-SD(c) of the Immigration Rules. DECISION

18. For the reasons elaborated above, we dismiss this appeal and affirm the decision of the FtT. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 24 th May 2014 Footnote: Names of Appellant’s representatives corrected under Rule 42, 07 July 2014. Appendix