Gu v Secretary of State for the Home Department

Paragraph 245AA(b)(i) of the Immigration Rules applies only where an identifiable sequence of documents exists and a document within that sequence has been omitted. At least the start and end of the sequence must be evidenced. The provision does not require a caseworker to request documents supplying the beginning or end of an otherwise incomplete sequence. The exception must be interpreted narrowly so that the Points Based System remains workable and efficient. Evidence showing adequate funds for most, but not all, of the required period did not engage paragraph 245AA where the evidence for the start of that period was absent.

The claimant, a Chinese national and Tier 4 student, applied for further leave to remain. His application was refused because the bank evidence did not demonstrate the required maintenance funds throughout the specified 28-day period. The evidence covered only part of that period, although later evidence showed that he had held sufficient funds throughout.

He sought judicial review, contending that paragraph 245AA(b)(i) required the Secretary of State to contact him because a bank statement from a sequence had been omitted. The central issue was whether documents covering the beginning of the required period constituted a missing document within an existing sequence.

1. Application dismissed. The Secretary of State was not required to seek further bank statements under paragraph 245AA(b)(i).

2. Giving paragraph 245AA its natural and ordinary meaning, something could not be missing from a sequence until the sequence itself existed. At least the start and end of the sequence had to be evidenced. An omission could therefore arise only from within those two limits.

3. The claimant’s evidence began on 28 or 29 August 2012, whereas the required 28-day period began on 24 August. The evidence for the start of the sequence was absent. Paragraph 245AA was therefore not engaged.

4. The provision did not impose a duty on the caseworker to pursue further information merely because the existing material indicated that the claimant might have held sufficient funds. It would not necessarily have been wrong for a caseworker to seek further information, but neither the rule nor the relevant policy required that course.

5. The court relied on the approach to evidential flexibility discussed in Patel & Others v Secretary of State for the Home Department [2014] EWCA Civ 2 and on the concern, identified in Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960, that excessive flexibility would impede the efficient operation of the Points Based System. The claimant’s later proof of adequate funds could not cure the failure to submit the required documents with the application.

The judgment does not state any prior substantive appellate decision in this litigation. Permission to apply for judicial review was granted by His Honour Judge Mark Rogers on 22 October 2013.