VT (India) v Secretary of State for the Home Department [2016] EWCA Civ 421

Case No C5/2015/1000[2016] EWCA Civ 421
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Wednesday, 17 February 2016
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
Between
VT (INDIA)Applicantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
DAR Transcript ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr P Collins (instructed by Direct Public Access) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a renewed application for permission to appeal against a determination of the Upper Tribunal promulgated on 24 November 2014, upholding the earlier determination of the First Tier Tribunal ("the FTT"), which dismissed the appeals of the applicant and his wife and daughter against the decisions of the Secretary of State of 11 December 2013. The Secretary of State had refused the applicant's application for leave to remain in the United Kingdom as a Tier 1 entrepreneur under the points based system of the Immigration Rules, and removal directions had been set for the applicant and his dependants.[2]Permission to appeal to this court was refused on consideration of the papers by Underhill LJ on 2 July 2015. An appeal to this court would be a second appeal, which I should only allow to go forward if I consider that it would raise some important point of principle or practice or there was some other compelling reason for this court to hear the appeal. There is also before me an application for an extension of time.[3]The applicant and his dependants are Indian nationals. The applicant arrived in the UK on a student visa on 14 March 2008. On 19 September 2013, he applied for a Tier 1 entrepreneur visa. His wife and daughter applied as his dependants. As I have said, that was refused on 11 December 2013. The Secretary of State awarded the applicant no points under paragraph 245D(d) and Appendix C: Maintenance (funds) of the Immigration Rules. It was stated in the decision letter:
" ... the Secretary of State is not satisfied that you have provided the specified documents to show you have been in possession of sufficient funds for the specified period, as laid out under appendix C of the Immigration Rules. The Halifax bank statements account number ending in 8062 that you have provided for your maintenance requirements are in the name of Mrs PVT [that is the applicant's wife] and not in your name, you have therefore not provided any of the acceptable evidence to demonstrate as specified under paragraph 1B of Appendix C of the Immigration Rules that you have been in possession of at least £2,700 of available funds (including £900 for yourself and £600 for each of your dependants) for a consecutive 90 day period ending no more than 31 days before the date of your application, in order to meet the Maintenance (funds) requirements."
[4]On appeal to the FTT, the applicant contended that the bank account in question, though in the name of his wife, was under his control. The FTT concluded at paragraph 14:
"The first appellant's case is that he has control over his wife's bank account. His wife said that he used it for savings. As the appellant was setting up a business, I do not find it credible that he would put his money into his wife's account rather than keeping it in his own account or opening a business account. He said that he had the password to the account. He sometimes pays money in and sometimes his wife gives money to him. If he wanted to use an account for savings, he has not explained why he could not open his own savings account. He has not submitted his own statements for this same period and there is therefore no evidence before the respondent or the Tribunal of the balances he held in the relevant period."
[5]On further appeal to the Upper Tribunal, Deputy Upper Tribunal

Judge Pickup referred to paragraph 14 of the FTT decision and stated at paragraph 14:

"Irrespective that finding, the requirement is that the funds must be under the first appellant's own control. By way of logical comparison, provision is made for joint entrepreneur applications, but in such case the bank account has to be in the names of both applicants. It makes no sense that an application by one prospective entrepreneur, even with dependants, should have a less strict requirement and permit necessary funds to be held in the name of another. Further and more significantly, paragraph 1B(iii)(1) specifically requires that the statements must show, inter alia, the name of the applicant. These statements do not show his name and thus cannot meet the requirements of the Immigration Rules."
[6]Before the Upper Tribunal, the applicant also sought to raise Article 8 of the European Convention on Human Rights. However, it is plain that no Article 8 case had been made or presented before the FTT. At paragraph 20 of his determination, Deputy Upper Tribunal

Judge Pickup said this:

"In the circumstances, I am not satisfied that the appellants can raise Article 8 at this stage, where it was not raised or addressed before the First Tier Tribunal they can be taken to have abandoned it as a ground of appeal."
[7]Mr Collins for the applicant seems to criticise the Upper Tribunal's approach to the bank account issue. I see nothing whatever wrong with it. In any event, the applicant does not in truth grapple with the FTT's rejection of his case on the facts of paragraph 14. There was moreover no question of the applicant enjoying anything in the nature of a legitimate expectation of the grant of a visa.[8]As regards Article 8, as I have said, no such claim was put before the FTT. Mr Collins said that nevertheless the Upper Tribunal judge to some extent entered into the merits of it, and having done that, the merits should have been fully and properly dealt with in line with established jurisprudence. But in my judgment the failure to raise the matter before the FTT is fatal to any attempt to have it fully canvassed in the Upper Tribunal, let alone this court. In the circumstances the Upper Tribunal judge was in my view not obliged to do any more than he did, and indeed, as I think Mr Collins implicitly acknowledged, could have dismissed the Article 8 claim simply by reference to the fact that it had not been raised in the lower tribunal.[9]I am afraid to say, with respect to Mr Collins, that this is a hopeless case. It could not begin to satisfy the test for a second appeal and I will dismiss the application.