Hazart Waqas Durrani v The Secretary of State for the Home Department

Immigration Rules requirements for Tier 1 (Entrepreneur) evidence must be construed reasonably and in context. A third-party bank letter need not guarantee that funds will be released. With the account holder’s consent, it may confirm its understanding that specified funds are contemplated or proposed for the applicant’s business venture.

Accordingly, the requirements in paragraph 41-SD(a)(i) do not create an absurd result merely because they require information about third-party funds. Whether a freestanding policy of evidential flexibility exists is a question of fact. In the absence of evidence that such a policy survived paragraph 245AA, an applicant cannot rely on it to cure missing specified documents.

The appellant, a Pakistani national with leave as a Tier 1 (Post-Study Work) Migrant, applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. He relied on his own funds and funds held by a proposed business partner. The Secretary of State refused the application because the bank evidence did not establish access to the required £50,000 and because required evidence of business activity was absent.

The First-tier Tribunal dismissed the appeal. Before the Upper Tribunal, the appellant contended that paragraph 41-SD(a)(i) of the Immigration Rules should not be read literally because English banks could not provide the required third-party information. He also relied on an alleged freestanding evidential-flexibility policy.

1. Appeal dismissed. The Upper Tribunal affirmed the First-tier Tribunal’s decision.

2. Paragraph 41-SD(a)(i) of the Immigration Rules had to be construed reasonably and sensibly in its full context. Where an applicant relied on third-party funds, the third party’s bank letter had to identify both the applicant and the third-party account holder. It also had to confirm the relevant amount of third-party money.

3. The prescribed letter did not require the bank to guarantee, assure, or undertake to release money for the proposed business. Its purpose was to attest to the account’s state at the date of the letter and to provide information confirming the application’s authenticity and economic viability. With the customer’s consent, a bank could state its understanding, based on the customer’s instructions, that specified funds were contemplated or proposed for the applicant’s venture.

4. The banker’s duty of confidentiality did not make this construction absurd. The court applied the principle that disclosure is lawful where the customer expressly or impliedly consents. The appellant therefore established neither an absurdity nor an anomaly requiring a different construction.

5. The alleged freestanding evidential-flexibility policy was unsupported by evidence. Whether a policy exists is a question of fact. Further, the Court of Appeal’s decision in Secretary of State for the Home Department – v – Rodriguez [2014] EWCA Civ 2 had reversed the contrary Upper Tribunal view on the documents said to constitute such a policy.

6. Independently, the application was bound to fail because it did not comply with the specified-document requirements in paragraph 41-SD(c)(iii).

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed and the First-tier Tribunal’s decision affirmed.
• First-tier Tribunal: Dismissed the appeal against the refusal of leave to remain as a Tier 1 (Entrepreneur) Migrant. No citation was stated.