Awan v Secretary of State for the Home Department [2018] EWCA Civ 1988

Case No C6/2016/2067[2018] EWCA Civ 1988IN THE COURT OF APPEAL (CIVIL) DIVISIONON APPEAL FROM UPPER TRIBUNAL (ASYLUM AND IMMIGRATION) CHAMBER(UPPER TRIBUNAL JUDGE CRAIG)Venue The Royal Courts of Justice, Strand, London WC2A 2LLDate Friday, 27 July 2018
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))
Between
AWANApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Transcript of Epiq Europe Ltd165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)
Mr M Iqbal & Mr R Thompson (instructed by Direct Access) appeared for ApplicantMr Z Malik (instructed by Government Legal Department) for Respondent

Judgment (Approved)

[1]The applicant is a national of Pakistan who came to this country in 2010 as a student. His leave to remain was extended as a post-study migrant to August 2014. He made an application for further leave to remain with which I am not concerned and which was eventually dismissed. But during the currency of that application he made a further application, which is the one with which I am concerned, for leave to remain as a Tier 1 Entrepreneur Migrant. That too was refused. He brought proceedings for judicial review of that decision. Permission to apply for judicial review was refused at a hearing by Upper Tribunal Judge Craig as long ago as 6 May 2016.[2]The applicant's application for permission to appeal against that decision came before me on the papers in May 2018. I found considerable difficulty in analysing the effect of the applicable rules and the parties’ positions in relation to them, and I accordingly directed the present hearing. I have been much assisted by clear and focused submissions on paper and orally by Mr Mashood Iqbal, for the applicant, and Mr Zane Malik, for the Secretary of State.[3]Since this is a permission application I need not set out the full statutory background or indeed the full applicable provisions of the rules. For present purposes we are essentially concerned with paragraph 41-SD(e)(iii) of Appendix A of the Immigration Rules. That required that the applicant should provide:
"one or more of the following specified documents covering (either together or individually) a continuous period, commencing before 11 July 2014 up to no earlier than 3 months before the date of [the] application."
There then follow four types of document. We are concerned only with (1) which reads:
"advertising or marketing material, including printouts of online advertising, that has been published locally or nationally, showing the applicant's name (and the name of the business if applicable) together with the business activity or, where his business is trading online, confirmation of his ownership of the domain name of the business's website."
[4]I have found it somewhat difficult to follow in the bundle the copies of the documents which the applicant supplied with his application purportedly pursuant to that obligation. But for present purposes it is common ground that I must proceed on the basis that it included what are described as “leaflets, flyers and brochures” for the business – i.e. hard-copy advertising and marketing materials, which on their face contained the information required in (1) – and also printouts of online advertising.[5]The development of the issues relating to whether what was supplied in fact satisfied the requirements of the rules has been complicated, both in the run-up to the hearing before Upper Tribunal Judge Craig and subsequently; but with the help of the submissions to which I have already referred, we established at the beginning of the hearing that the position can be summarised as follows:(1) Mr Iqbal now accepts that the online material supplied was defective. But that is not fatal to his case, because it is enough if the hard-copy materials satisfied the rule. That was not contradicted by Mr Malik.(2) As regards the hard-copy materials, Mr Iqbal accepts that he was obliged to provide information about national or local publication covering the specified period, though he emphasises that there is no requirement in the rules as to the form in which such information should be provided. (That too is not contradicted by Mr Malik). I observe at this stage that in the case of hard-copy marketing material the information about publication will not appear on the face of material itself. A leaflet is only a leaflet and provides no evidence of how or where it was distributed. Therefore that information will have to be provided in another form.(3) Mr Iqbal accepts that the applicant did not provide such information with the original application. He submits, however, that that constituted a case of missing information of the kind covered by the provisions of paragraph 245AA(b)(iv) of the rules, and that the Secretary of State should accordingly have contacted the applicant or his representatives and requested the information in question. The relevant subparagraph reads:
"(b) If the applicant has submitted the specified documents and: (i) some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided; or (ii) a document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or (iii) a document is a copy and not an original document; or (iv) a document does not contain all of the specified information; the … Secretary of State may contact the applicant or his representative in writing, and request the correct documents."
Mr Malik submits that that subparagraph does not have any application in the circumstances of the present case. (4) Mr Iqbal submits that if the Secretary of State had asked for the information in question, it would have been supplied. The best evidence of what would have been supplied is in the form of a letter which was subsequently supplied, following the refusal from a company, called "Efficient Signs & Print" dated 8 September 2015. This reads: "RE: LIFELINE CONSULTANTS LIMITED [that is the name of the applicant's business] We Efficient Signs & Print have been producing and distributing marketing material for Lifeline Consultants Ltd as of 26 June 2014 till present. We produced Business Card, Flayer [that must be a slip for 'Flyers'], Marketing Leaflets which distributed door to door locally (area covered E6, E7, E10, E11, E15, E17, NW10, IG1, IG7). We hope we have clarified your concerns. Should you still require any further information please do not hesitate to contact us." (5) The Upper Tribunal judge failed in his judgment to address the part of the applicant's case based on the letter of 8 September 2015. He appears to have decided the case simply on the basis that the applicant had provided no evidence to show that he could have corrected the defects in the online materials. But, as already noted, the applicant's case did not depend on the online materials. Mr Malik accepts that that is a fair characterisation of the judge's reasoning, or at least that it is arguable that it is; but it is common ground that I should not give permission to appeal if it is clear that the evidence before the judge could not justify the conclusion that the applicant would have supplied the missing information from his original application had a request been made for it under paragraph 245AA(b)(iv).[6]Therefore there are really only two issues before me. The first is whether paragraph 245AA(b)(iv) applies to a case under paragraph 41-SD(e), where information about publication is required but not as part of the information that would be contained in the specified documents themselves. The second is whether it is established that if a request under paragraph 245AA(b)(iv) had been made, the applicant would not have been able to comply with it.[7]As to the first issue, I do not believe that it is arguable that 245AA(b)(iv) applies in a case of this kind. On any natural reading of the rule, the information in question must be information of a kind which would have been "contained" in the document. Information about publication will of its nature necessarily be extraneous, for the reason I have given at the end of para. 5 (2) above. I have carefully considered Mr Iqbal's submission that(a) information about publication is specified information within the meaning of the rule and(b) that such information is literally not "contained" in the document. However, it seems to me quite clear from the context that the rule is concerned with defects in the specified documents themselves and not with cases of missing information extraneous to the documents, and that I think is further confirmed by the closing words of paragraph 245AA(b) which contemplate the applicant being asked for and sending "the correct documents".[8]That conclusion means that I need not consider the second issue. If I had had to do so, it would have been a very nicely balanced judgment. I do not believe that the obligation on the Secretary of State under paragraph 245AA(b) would have been to do more than request, in general terms, information of national or local publication as required by paragraph 41-SD(e)(iii)(1): that is to say, she need not have made a specific request for particular details of the information that she required. The best evidence of what would have been provided is indeed the letter from Efficient Signs. If that letter gives the information in question it does so only in the most minimal form, and it is debatable whether it gets over the line at all. In particular, Mr Malik draws attention to the fact that it is certainly not clear that distribution of the materials began prior to the crucial date of 11 July: Mr Iqbal suggested that the literal meaning of the letter is that distribution had started on 26 June, but that is not entirely clear. Mr Malik also makes a point about what exactly is said to have been distributed, because the flyers referred to need not have been the flyers that had been previously supplied: I would have had less trouble with that point if it had been the only point. As I say, however, although the applicant might have scraped over the line if this had been the dispositive issue, it is unnecessary for me to reach a final decision about that.[9]For those reasons, I do not believe that an appeal against the decision of the Upper Tribunal has a realistic prospect of success and I must accordingly refuse permission to appeal.[10]I repeat my gratitude to counsel for their careful submissions in an area where the requirements of the rules are not as clear as anyone would wish. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.