NB (Pakistan) v Secretary of State for the Home Department

Under the Immigration Rules, requirements in an appendix may be mandatory conditions for awarding points even where the operative rule does not expressly cross-refer to them. A Tier 1 applicant required to hold funds under his own control for a specified period must have a legal right to dispose of those funds throughout that period. Funds held by a third party do not qualify merely because that person is willing to make them available. The proposed constructions therefore had no real prospect of success, and permission to appeal was refused.

The applicant, a Pakistani national, applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. The First-tier Tribunal held that section 19 of the UK Borders Act 2007 restricted the evidence it could consider, found that the maintenance-funds requirement was not met, and held that removal would not be a disproportionate interference with the applicant’s Article 8 rights. The Upper Tribunal dismissed the appeal, finding that the applicant had not held £800 under his own control for the required period. On a renewed application for permission to appeal, the Court of Appeal considered the construction of Rule 245DD and Appendix C, particularly the mandatory nature of paragraph 1A and the meaning of own control.

Application refused. Lord Justice Moore-Bick considered the two amended grounds concerning the construction of Rule 245DD and Appendix C.

1. Mandatory requirements. Appendix C had to be read sensibly as part of the Immigration Rules. Paragraph 1A expressly applied in all cases where an applicant was required to obtain points under Appendix C. It was intended to prescribe requirements that had to be met before any points could be awarded under paragraph 2. The absence of an express reference to paragraph 1A in Rule 245DD did not alter that conclusion. Any other construction would render paragraph 1A redundant.
2. Own control of funds. Having funds under an applicant’s own control for the required 90-day period meant having a legal right to dispose of them throughout that period. Control was not equivalent to influence or mere availability. Funds held in a third-party account could qualify only where the applicant had an enforceable right to require the bank or account-holder to act on his instructions. Funds that a parent was willing to provide therefore did not satisfy the requirement.
3. Disposition. Neither proposed argument had any real prospect of success. It was consequently unnecessary to decide whether the other requirements for an appeal from the Upper Tribunal were met. Permission to appeal was refused. Order: Application refused.

1. Court of Appeal (Civil Division): On 25 September 2013, permission to appeal was refused on the renewed application.
2. Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed in a decision promulgated on 15 January 2013.
3. First-tier Tribunal: In a decision published on 11 May 2012, the appeal against the Secretary of State’s refusal was dismissed. The tribunal held that the evidential requirements were not met and that removal would not disproportionately interfere with Article 8 rights.