SI (Bangladesh) v Secretary of State for the Home Department [2015] EWCA Civ 737

Case No C5/2014/2062[2015] EWCA Civ 737
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Tuesday, 16th June 2015
Strand
London, WC2
B E F O R E:
LORD JUSTICE RICHARDS
SI (BANGLADESH)
Applicant/Claimant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant/Respondent
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Mr M Iqbal (instructed by Simon Noble Solicitors) appeared on behalf of the Applicant
J U D G M E N T
Between
SI (Bangladesh)AppellantSecretary of State for the Home DepartmentRespondent

LORD JUSTICE RICHARDS:

[1]This is a renewed application for permission to appeal against a determination of the Upper Tribunal (Deputy Upper Tribunal Judge Garratt) promulgated on 28th March 2014.[2]The case concerns an application for leave to remain as a Tier 1 (Entrepreneur) Migrant. The application was refused by the Secretary of State. An appeal to the First-tier Tribunal was dismissed but the First-tier Tribunal's decision was set aside by the Upper Tribunal for error of law and was remade. The result however was the same. The subject of the present challenge is the remade decision.[3]The basis on which the appeal was dismissed was very simple. One of the requirements that the applicant had to satisfy under the relevant rules was that he had access to at least £50,000 at the date of the application, namely the 18th February 2013. The reason why the Upper Tribunal judge held that he had not proved that he met that requirement was set out at paragraph 14 of the Determination, which I quote:
"I have already indicated that the appellant had shown that he and his business partner had invested £34,750 into Legend Marketing Company Limited of which they were the sole directors. However, the appellant did not provide evidence which actually showed that, at the date of the application, the balance of investment required under the Rules of £15,250 was available. The RBS joint bank account statements provided showed a balance on 5th February 2013 of £40,037.62 although previous entries in the statement going back to 11th December 2012 showed balances as low as about £300. The date of application was 18th February 2013 and so I cannot conclude, on a balance of probabilities, that the sum of £15,250 would have been available at the date of application. The joint account details shown evidently relate to a business account with a significant fluctuating balance. That evidence does not enable me to conclude the required sum was available on 18th February 2012."
[4]Mr Iqbal submits that the applicant had met the requirement under the rules, specifically under paragraph 41-SD(c)(ii)(6) that each bank statement relied on "must have been issued by an authorised official of that institution and produced within the 3 months immediately before the date of the application."[5]The Upper Tribunal judge does not suggest that there was any failure to meet that requirement. On the contrary, he relied on the bank statements rather than rejecting them for failing to meet the requirement as to the form that such evidence had to take. But, as it seems to me, the point takes one nowhere. The Tribunal did not require a bank statement dated as at the date of the application, 18th February 2013, and any suggestion that it did so require is to my mind misconceived.[6]The real question, as it seems to me, is whether the Upper Tribunal judge was wrong to find that on the evidence duly provided the requirement of access to funds of £50,000 at the date of the application was not met. The point is made on the applicant's behalf that the statement produced by him showed that he had a balance of over £40,000 as at 5th February 2013. But that of course does not show that he had the requisite amount as at the date of the application some 2 weeks later, on 18th February. It does not meet the point in the reasoning of the Upper Tribunal judge that the balance in the account had fluctuated significantly and had been as low as £300. It does not meet the point that the Upper Tribunal judge felt unable to conclude, on the balance of probabilities, that the required sum was available on the 18th February, a conclusion that in my judgment was an entirely rational conclusion on the evidence.[7]Mr Iqbal submits that it was impossible, or at least unduly onerous, for the applicant to supply a statement showing precisely what was in the account as at the 18th February. The fact is, however, that inferences can properly be drawn from statements relating to the period running up to the date of the application. Such inferences were drawn by the Upper Tribunal judge on this occasion and, as I have said, were properly drawn.[8]Mr Iqbal has attempted to get me to look at bank statements postdating the date of the application and showing, he would say, that there were sufficient funds available as of the date of the application. He accepts however that such evidence was and is inadmissible and I firmly decline to receive it.[9]It is said that the applicant was taken by surprise by the approach adopted by the Upper Tribunal judge, and that he should have been given an opportunity to adduce further evidence as to the position at 18th February. That submission is plainly a bad one, in that Mr Iqbal also accepts that the matter had to be determined by the Upper Tribunal on the basis of the evidence that had been placed before the original decision maker, the Secretary of State. In any event, I see no possible argument as to unfairness in this case. The requirements of the rules are clear and the Decision Letter itself was clear. The applicant knew the case that he had to meet on any appeal.[10]For all those reasons I am satisfied that an appeal would simply have no real prospect of success. In any event, I agree with the observation of Arden LJ, when refusing permission to appeal on the papers, that the criteria for a second appeal have not been met. This is a highly fact specific case which raises no important point of principle or practice and gives rise to no compelling reason why an appeal should be heard. I do not accept the suggestion by Mr Iqbal that it raises some important issue as to the proper interpretation of the rules.[11]For all those reasons the renewed application is refused.