The Secretary of State for the Home Department v Parvaiz Akhter & Anor

A document is not in the wrong format merely because it omits information which the applicable evidential rule requires it to contain. Under Immigration Rules paragraph 245AA, the discretionary facility to request corrected documents applies only to an omitted document in a sequence, a document in the wrong format, or a copy instead of an original. It does not permit an applicant to cure substantive omissions from a bank letter that fails specified requirements for evidence of available third-party funds.

A tribunal must establish, rather than assume, that an evidential-flexibility policy remained in force after paragraph 245AA was introduced.

The respondents, Pakistani nationals, jointly applied for Tier 1 (Entrepreneur) Migrant status relying on £200,000 held by third parties. Their supporting bank letter did not name them and did not give the account holders’ postal address, landline telephone number or email address.

The Secretary of State refused the application for failure to satisfy the specified documentary requirements. The First-tier Tribunal rejected the respondents’ construction arguments but allowed their appeals on fairness and evidential-flexibility grounds, holding that the Secretary of State should have sought further evidence.

The Secretary of State appealed to the Upper Tribunal. The central issue was whether the omissions brought the bank letter within paragraph 245AA of the Immigration Rules, so that the respondents should have been invited to correct it.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the respondents’ immigration appeals were dismissed.

2. The bank letter failed requirements (6) and (10) of paragraph 41-SD(a)(i) of the Immigration Rules. It did not name the respondents and did not give the required contact details of the account holders. These were genuine failures of compliance, not consequences of an absurdity or anomaly in the Rules. The Tribunal rejected the proposed substitutions of different words into those requirements: [12]–[13].

3. The First-tier Tribunal erred by assuming that the earlier evidential-flexibility documents continued as a policy after paragraph 245AA came into force. Whether such a policy existed was a factual question requiring an evidential foundation. None had been established. The Court of Appeal’s decision in Secretary of State for the Home Department v Rodriguez and Others [2014] EWCA Civ 2 also showed that the earlier Upper Tribunal conclusion that the documents created a new policy had been reversed: [15].

4. On remaking the decision, paragraph 245AA(b) did not assist the respondents. Its discretion concerned only a missing document in a sequence, a document in the wrong format, or a copy rather than an original. A bank letter containing substantive omissions of required information did not fall within any category. The Secretary of State therefore acted lawfully in declining to offer an opportunity to rectify the deficiencies: [17]–[18].

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, and remade the decision by dismissing the respondents’ appeals.
• First-tier Tribunal: Allowed the respondents’ appeals on the basis that the refusal was not in accordance with the law for fairness and evidential-flexibility reasons, while rejecting their primary construction arguments.