SI (Bangladesh) v Secretary of State for the Home Department

For a points-based immigration application requiring access to a specified sum on the application date, evidence need not be a bank statement issued on that exact date. Properly issued statements covering the period before the application may support reasonable factual inferences about the balance on the relevant date. The tribunal must decide whether the required funds were available on the balance of probabilities. Where account balances have fluctuated significantly, a statement showing sufficient funds shortly before the application may be inadequate. Evidence postdating the application is inadmissible where the appeal must be determined on the evidence before the original decision-maker. Clear requirements and a clear decision letter will ordinarily make an allegation of procedural unfairness unsustainable.

The applicant sought leave to remain as a Tier 1 (Entrepreneur) Migrant. The Secretary of State refused the application, and the First-tier Tribunal dismissed his appeal. The Upper Tribunal set that decision aside for error of law, remade the decision, and dismissed the appeal again.

The applicant renewed an application for permission to appeal. The issue was whether the Upper Tribunal had erred in finding that he had not shown access to at least £50,000 on 18 February 2013, despite bank statements showing a balance exceeding £40,000 on 5 February 2013, and whether he had been unfairly denied an opportunity to provide further evidence.

1. Renewed application refused. The proposed appeal had no real prospect of success and no important point of principle or practice or compelling reason justified a second appeal.
2. The relevant requirement was access to at least £50,000 at the date of application. Paragraph 41-SD(c)(ii)(6) required each relied-on bank statement to have been issued by an authorised official and produced within the three months before the application. It did not require a statement dated precisely 18 February 2013.
3. The Upper Tribunal was nevertheless entitled to decide that the substantive funds requirement had not been proved. A balance above £40,000 on 5 February did not establish availability two weeks later, particularly where earlier balances had fluctuated and had fallen to about £300. The finding that the required sum was not shown on the balance of probabilities was rational.
4. Statements postdating the application were inadmissible. The appeal had to be determined on the evidence placed before the Secretary of State, and the court firmly declined to receive later material.
5. There was no procedural unfairness. The rules and the decision letter clearly identified the case the applicant had to meet, and no unexpected approach required an opportunity for further evidence.

• Court of Appeal (Civil Division): the renewed application for permission to appeal was refused.
• Upper Tribunal: the First-tier Tribunal’s decision was set aside for error of law, but the decision was remade with the appeal dismissed.
• First-tier Tribunal: the applicant’s appeal against refusal of leave to remain was dismissed.