A new case from the Upper Tribunal, Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC). This case highlights the Home Office and Tribunals stringent and strict approach when it comes to supporting documents for Tier 1 Entrepreneur application. Especially the requirements under paragraph 41-SD(a)(i) of the Immigration Rules.
Facts of the Case
The Appellant, Hazrat Waqas Durrani a Pakistani national entered the UK on 1 September 2007 with a Tier 4 Student visa. Durrani switched his student visa to Tier 1 (Post-Study work) migrant. On 23 February 2013, he applied for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant.
To show that Durrani met the financial requirement of £50,000, he referenced both his finances and those of entrepreneurial team member, Mr “R”. He submitted two letters with his application, a letter from Lloyds TSB confirming that he held £27,043.10 in his account. The second letter, was from Santander bank confirming that Mr “R” has a bank balance of £25,014.77.
Durrani’s Tier 1 Entrepreneur application was refused on 4 April 2013. According to the UKBA, Durrani failed to meet the requirements of the following three attributes:
- Access to funds as required (25 points).
- Funds held in a regulated financial institution (25 points).
- Funds disposal in the United Kingdom (25 points).
Under the Immigration Rules it is necessary for an applicant to gain 25 points from each of the above attributes. The Secretary of State gave her reason for refusing Durrani’s application:
“…. 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. 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. 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.”
Appeal to the First-Tier Tribunal
Durrani appealed the Home Office’s decision, on the grounds that paragraph 41-SD(a) of the Immigration Rules did not apply to his application. The Judge was quick to dismiss this argument. Secondly, the Judge noted that paragraph 41-SD(a)(i)(9) should not be taken literally. Durrani’s representatives claimed that Mr R’s bank would not confirm that Durrani had access to his funds as it was against their policy to do so. The Judge did not focus specifically on sub-paragraph 9, when dismissing this argument, but concentrated on sub-paragraphs (6) and (10). Stating 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).”
Durrani’s representative’s second argument was that the UKBA failed make an “evidential flexibility” request for further documents. The Judge dismissed this argument, stating that under paragraph 245AA(c) of the Immigration Rules, the UKBA is not obliged to request further documents when “a specified document has not been submitted”. The Judge dismissed the appeal and Durrani took his matter to the Upper Tribunal.
Upper Tribunal’s Decision
Durrani’s case went before Mr Justice McCloskey in the Upper Tribunal. The Judge went through the First-Tier Tribunal reasons for dismissing the appeal and agreed that the bank letters provided by Durrani, should demonstrate the availability of a total sum of £50,000 minimum. He suggested that Mr R, could have given his consent for the bank to disclose where his funds were going. Mr Justice stated that:
“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.”
Mr Justice McCloskey went on to assert the First-Tier Tribunal’s decision and dismissed the appeal.
Successful Tier 1 Entrepreneur Visa Applications & Appeals
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