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

On an application for permission to bring a second appeal, the applicant must show an important point of principle or practice, or another reason making a second appeal appropriate. Whether omissions in supporting documents are minor or de minimis is a highly fact-sensitive evaluation for the fact-finding tribunal. The Court of Appeal will not ordinarily intervene by recasting that evaluation as a point of principle, particularly where the argument was not advanced below. Documentary requirements in the points-based system must be read in light of their purpose: documents must demonstrate active trading, and formal compliance alone may not suffice.

A married couple applied for leave to remain under Tier 1 (entrepreneur). The application was refused because of deficiencies in contracts and business-registration evidence. The First-tier Tribunal allowed the appeal only to the extent that the applications remained outstanding so that further evidence could be supplied. The Upper Tribunal allowed the Secretary of State’s appeal on 2 June 2014, relying on Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 and finding that the omissions were not minor.

On a renewed application for permission to bring a second appeal, the applicants argued that several matters were not required by the Immigration Rules and that one omission was de minimis. The central issue was whether that new argument disclosed a point warranting a second appeal.

Permission to appeal refused. The renewed application had to satisfy the second-appeal threshold by identifying an important point of principle or practice, or some other reason making a second appeal appropriate.

The applicants did not challenge the Upper Tribunal’s application of Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2. The Court therefore did not reopen the conclusion that evidential flexibility did not require the Secretary of State to invite an applicant to remedy a defect or inadequacy after substantive consideration of the application.

The Court rejected the submission that the documentary requirements in paragraph 41 SDC4 of the Immigration Rules could be treated as limited to the formal features expressly identified. Their purpose was to demonstrate that active trading was taking place. Documents lacking relevant information might therefore fail to establish that requirement. The rules required the contract to include the other party’s contact details, including a landline number. If the customer had no landline, the documents could state that fact and provide a mobile number.

Whether omissions were minor or de minimis was essentially a question of fact. The inquiry was highly fact-sensitive and context-dependent, and was pre-eminently for the fact-finding tribunals. The Court of Appeal would not intervene in that area. The argument had also been advanced in a substantially different form from that presented below and could not be elevated into a point of principle. Permission was accordingly refused.

1. Court of Appeal (Civil Division): On 23 July 2015, Tomlinson LJ refused the renewed application for permission to appeal.
2. Upper Tribunal: On 2 June 2014, Upper Tribunal Judge Pinkerton allowed the Secretary of State’s appeal against the First-tier Tribunal’s determination.
3. First-tier Tribunal: Allowed the appeal only to the extent that the applications remained outstanding before the Secretary of State so that further evidence could be supplied.