AH (Bangladesh) & Ors v Secretary of State for the Home Department

The flexibility provision in paragraph 245AA concerns documents in the wrong format. It does not cure documents that fail to disclose a substantive requirement, such as joint ownership of funds, even where the account number may permit an inference of joint ownership. A tribunal may properly accept a concession that the relevant rules were not complied with where the concession is correct. Later amendments cannot be applied retrospectively to an earlier application. A harsh outcome, or the possibility that the underlying facts met the requirements, does not itself disclose an error of law or empower the Court of Appeal to require reconsideration.

This was a renewed application for permission to appeal from a decision of Upper Tribunal Judge Grubb. The first applicant sought further leave to remain as a Tier 1 entrepreneur as part of an entrepreneurial team. The positions of the second and third applicants depended on his success. The Secretary of State had refused the application and made removal decisions.

The issue was whether bank statements established the required £50,000 funds and equal control by the applicant and his entrepreneurial partner. The Upper Tribunal accepted a concession that the relevant rules had not been complied with, held that paragraph 245AA did not apply because the defect was not one of format, and rejected retrospective application of later amendments. The central question was whether those conclusions disclosed an arguable error of law.

1. The renewed application for permission to appeal was refused. There was no basis on which an appeal could succeed as a matter of law.
2. The documentation supplied did not make it plain that the relevant bank account was held jointly by the applicant and his entrepreneurial partner. The fact that the account number was the same on two statements might support an inference of joint ownership, but it did not make compliance with the documentary requirements inevitable.
3. The Upper Tribunal was entitled to accept the concession that the relevant rules had not been complied with. The judge was not required to reject a concession which he considered correct.
4. Paragraph 245AA provided flexibility for an application where a document was in the wrong format. The defect here was not a matter of arrangement or presentation. The documents failed to disclose that there were two joint account holders and therefore did not satisfy the substantive evidential requirement.
5. Although later amendments to the rules might have enabled the applicant to provide further information, they came into force after the application. They could not be treated as having retrospective effect.
6. The result appeared particularly harsh and the underlying facts might have supported joint ownership. That circumstance did not establish an error of law. The court could not require the Secretary of State to reconsider the matter, although it indicated that reconsideration might be appropriate.

1. Court of Appeal (Civil Division): Elias LJ refused the renewed application for permission to appeal on 21 July 2015.
2. Upper Tribunal: Upper Tribunal Judge Grubb held that the concession of non-compliance was properly made, paragraph 245AA did not apply, and later amendments could not operate retrospectively.
3. First-tier Tribunal: The tribunal considered whether the applicant and his entrepreneurial partner had demonstrated the required funds and equal control through the documents provided.
4. Secretary of State: On 21 June 2013, the application for further leave to remain was refused and removal decisions were made.