Kiran Fayyaz v The Secretary of State for the Home Department

For Tier 1 (Entrepreneur) applications relying on third-party funds, the specified-document requirements in Immigration Rules, Appendix A, must be met. A bank letter may be required to give the third-party funder’s prescribed contact details. The requirement is not absurd merely because the information is held by, or must be supplied to, the bank.

The phrase “provided to” in paragraph 41-SD(a)(i)(9) means “available to”. The later amendment made this clearer but did not correct an ambiguity or absurdity. A legal representative’s letter required by paragraph 41-SD(b)(ii) is a freestanding specified document, not a missing item in a sequence of documents for paragraph 245AA purposes.

Kiran Fayyaz v The Secretary of State for the Home Department was an appeal from a First-tier Tribunal decision, promulgated on 27 November 2013, dismissing an appeal against refusal of leave to remain as a Tier 1 (Entrepreneur) Migrant.

The appellant relied on third-party funds held at a Pakistani bank. Her bank material did not provide the funder’s full address, landline number or email address. She had also not supplied the legal representative’s letter required to validate the third-party declaration. She argued that the relevant bank-letter requirements were absurd and that the Secretary of State should have sought the missing legal letter under paragraph 245AA.

1. Appeal dismissed. The First-tier Tribunal’s decision was affirmed, although the Upper Tribunal’s reasoning differed from that of the First-tier Tribunal.

2. The appellant had not supplied a compliant bank letter under paragraph 41-SD(a)(i)(10) of Appendix A to the Immigration Rules. Neither bank communication provided the third-party funder’s full address, landline telephone number or email address. The third-party declaration could not satisfy a requirement directed specifically to the bank letter.

3. The requirement was neither impossible nor absurd. There was no evidence that the information could not be obtained or disclosed. Objectively, it was information which would readily be available and which a genuine funder could authorise the bank to disclose. The later production of a compliant letter in a related appeal also demonstrated that the requirement was capable of compliance.

4. Although unnecessary to the refusal ground, the Tribunal held that “provided to” in paragraph 41-SD(a)(i)(9) means “available to”. That construction follows the language and purpose of Table 4 and paragraph 41, which concern funds available for investment and transferable to the United Kingdom. The later amendment was clarificatory only.

5. The missing legal representative’s letter under paragraph 41-SD(b)(ii) was a separate specified document. It was not one document in a sequence within paragraph 245AA(b)(i). Paragraph 245AA(c) confirmed that the UK Border Agency would not request a specified document that had not been submitted. The evidential-flexibility ground therefore failed.

• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed and the First-tier Tribunal decision affirmed: [2014] UKUT 296 (IAC).
• First-tier Tribunal: appeal against refusal of leave to remain as a Tier 1 (Entrepreneur) Migrant dismissed; determination promulgated on 27 November 2013.