Iqbal & Dependants v Secretary of State for the Home Department

The Immigration Rules must be construed sensibly according to the natural and ordinary meaning of their language. Their purpose and the Secretary of State’s intention are discerned objectively from that language. A purposive construction cannot rewrite a rule or give it a meaning that its words cannot bear.

An applicant relying on third-party funds for leave as a Tier 1 (Entrepreneur) Migrant had to comply with paragraph 41-SD(a) of Appendix A. The applicant also had to comply with paragraph 41-SD(b). The required bank letter could lawfully be supplied with the account holder’s consent. In this context, money “provided to” an applicant meant money “available to” that applicant.

These conjoined appeals concerned applications for leave to remain as Tier 1 (Entrepreneur) Migrants. Each principal applicant relied on money held by a third party but failed to provide a bank letter satisfying paragraph 41-SD(a)(i) of Appendix A to the Immigration Rules.

In Mr Iqbal’s case, the First-tier Tribunal allowed the appeal after accepting that compliance was impossible. The Upper Tribunal set that decision aside and dismissed the appeal. In Mr Tank’s case, the First-tier Tribunal allowed the appeal on evidential-flexibility and article 8 grounds. The Upper Tribunal again set the decision aside and dismissed the appeal.

The central issue was whether an applicant relying wholly or partly on third-party funds had to comply with paragraph 41-SD(a), as well as the additional requirements in paragraph 41-SD(b), and whether the prescribed bank-letter requirements were incapable of practical compliance.

1. The appeals were dismissed unanimously. Applicants relying on third-party funds had to comply with paragraph 41-SD(a) of Appendix A to the Immigration Rules. They also had to provide the third-party documents required by paragraph 41-SD(b). The two sets of requirements were cumulative. Paragraph 41-SD(a) established both the existence of the required cash in an appropriate financial institution and the third party’s instruction that it was to be made available to the applicant. Paragraph 41-SD(b) supplied the third party’s separate confirmation that the money was available for investment in a United Kingdom business (Sullivan LJ, with whom Hallett and Vos LJJ agreed).

2. There was no satisfactory evidence that banks were unable or unwilling to supply compliant letters. The conclusions in Fayyaz [2014] UKUT 296 (IAC) and Durrani [2014] UKUT 295 (IAC) were manifestly correct. A bank letter did not guarantee the release of funds. It recorded the state of the account and the customer’s instruction. A bank could disclose the necessary information with its customer’s consent, consistently with Tournier v National Provincial and Union Bank of England [1924] 1 KB 461.

3. The words “provided to” in paragraph 41-SD(a)(i)(9) meant “available to” in their context. Treating them as referring only to money already transferred would make the provision otiose because such money would form part of the applicant’s own funds.

4. Vos LJ added that the purpose and intention of the Immigration Rules must be ascertained objectively from the language used. A court may lean against an absurd construction where the words can bear an alternative meaning. It cannot use purposive construction to rewrite a rule or substitute a meaning inconsistent with its fair objective reading.

5. Mr Tank’s late application for permission to appeal on article 8 grounds was refused. Article 8 had not been raised in his application, and there was no evidential basis for such a claim before the tribunals.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 169, dismissed both appeals and refused Mr Tank permission to pursue his late article 8 ground.
2. Upper Tribunal (Immigration and Asylum Chamber): In each case, set aside the First-tier Tribunal’s decision and dismissed the applicant’s appeal under the Immigration Rules. It also dismissed Mr Tank’s article 8 case.
3. First-tier Tribunal: Allowed Mr Iqbal’s appeal on the basis that literal compliance was impossible and that he had met the Rules’ purpose. Separately allowed Mr Tank’s appeal on evidential-flexibility and article 8 grounds.