“This route is for migrants who wish to establish, join or take over one or more businesses in the UK”
“To qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.”
“Investment and business activity Points 25 points (a) The applicant has access to not less than£200,000 , … (d) The applicant: (ii) has, or was last granted, leave as a Tier 1 (Post-Study Work) Migrant, (v) has access to not less that£50,000 . The money is held in one or more regulated financial institutions 25 points The money is disposable in the UK 25 points.” (ii) has, or was last granted, leave as a Tier 1 (Post-Study Work) Migrant, (v) has access to not less that£50,000 . The money is held in one or more regulated financial institutions 25 points The money is disposable in the UK 25 points.”
“An applicant will only be considered to have access to funds if: (a) The specified documents in paragraph 41-SD are provided to show cash money to the amount required (this must not be in the form of assets); (b) The specified documents in paragraph 41-SD are provided to show that the applicant has permission to use the money to invest in a business in the UK; (c) The money is either held in a UK regulated financial institution or is transferable to the UK.” “(d). The money will remain available to the applicant until such time as it is spent in the establishment or running of the applicant’s business or businesses. “Spent” excludes spending on the applicant’s own remuneration. The UK Border Agency reserves the right to request further evidence or otherwise verify that the money will remain available, and to refuse the application if this evidence is not provided or it is unable to satisfactorily verify. “Available to him” means that the funds are: (1) in his own possession, (2) in the financial accounts of a UK incorporated business of which he is the director, or (3) available from the third party or parties named in the application under the terms of the declaration(s) referred to in paragraph 41-SD(b) of Appendix A.”
“41-SD. The specified documents in Table 4 and paragraph 41 are as follows: (a) The specified documents to show evidence of the money available to invest are one or more of the following specified documents: (i) A letter from each financial institution holding the funds, to confirm the amount of money available to the applicant (or the entrepreneurial team if applying under the provisions in paragraph 52 of this Appendix). Each letter must: (6) state the applicant's name, ……. (8) confirm the amount of money available from the applicant's own funds (if applicable) that are held in that institution,(9) confirm the amount of money provided to the applicant from any third party (if applicable) that is held in that institution,(10) confirm the name of each third party and their contact details, including their full address including postal code, landline phone number and any email address.”
“T]hat 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.”
“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.
“The ingredients of the first refusal reason were, therefore, the failure of the Pakistani Bank to provide in either of its communications the full address, landline phone number and any email address of the third party funder. The conclusion that the requirement in the Rules that the bank letter contain this information does not give rise to any absurdity or anomaly is, in our view, easily made. This conclusion is driven by two considerations. The first is that there is no evidence lending weight to the Appellant’s argument. Evidence of absurdity could conceivably have been provided by the Appellant, her solicitors, the bank or the third party funder. There is no evidence from any of these sources. The second consideration is that, viewed purely objectively and in the abstract, there is no detectable absurdity or anomaly. The requirement that the bank provide this information does not give rise to any ascertainable insurmountable hurdle or impossibility. On the contrary, we readily infer that the information in question would be easily available and, further, that a genuine third party funder would be willing to provide it to the bank and to authorise its disclosure to the Secretary of State. The Appellant’s absurdity argument is further confounded by the evidence of a fully compliant bank letter (albeit provided belatedly) in two of the related appeals, the combined cases of Akhter and Maqbool: see [9] of our determination in those cases. Furthermore, there was no contention or, more important, evidence that any provision of Pakistani banking law OR internal bank rule on regulation OR bank/customer contract precludes disclosure of the information required by the Rules and we have no warrant for making an inference to this effect. Thus the first ground of appeal must fail.”
“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.” “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.”
“confirm the amount of money providedto the applicant from any third party (if applicable) that is held in that institution.”
“[W]e consider it appropriate to make clear our view that this discrete argument has no merit. It is trite that in construing these words the whole of the context must be considered. This includes Appendix A, Table 4, which repeatedly employs the terminology “access to” a minimum sum of money. This is repeated in the opening words of paragraph 41. In paragraph 41(b) and (c), the language includes “permission to use the money to invest in a business in the UK” and “transferrable to the UK”
“Whilst it may be difficult for some applicants to meet those requirements, I am not satisfied that it is impossible. I find no conclusive evidence to show that all applicants are unlikely to be able to meet the requirements, which are unfair as submitted by Mr. Saini. In any event those are the Rules and there is no provision for other forms of evidence to meet the requirements instead. On the evidence before me I find that the appellant has failed to meet the Rules under paragraph 245 41-SD(a)(i) both in form and content and accordingly the appeal is dismissed.”
“As I have dismissed the appeal on immigration grounds, I find that any claim under Article 8 would necessarily fail as any private life established by the claimant would be contingent on meeting the immigration rules.”