Kazim & Anor, R (on the application of) v The Secretary of State for the Home Department

To satisfy the investment-funds requirements of the Immigration Rules, applicants must show that the required funds are available from their own resources or from a third party. A balance in a company bank account cannot, without more, be treated as the applicants’ own funds. The company is a separate legal entity, and evidence must also establish that the money is available for investment. In judicial review, disagreement with the underlying decision is insufficient. Permission should be refused where the decision-maker’s interpretation was lawful and no irrationality, Wednesbury unreasonableness, or error of fact or law is shown.

The Secretary of State refused the appellants’ application for leave to remain under Tier 1 (Entrepreneur) of the points-based system. The appellants relied on approximately £50,047.77 held in their company’s bank account as evidence of the funds required for investment.

Following permission granted by Davis LJ, the judicial review claim was remitted to the Upper Tribunal. Upper Tribunal Judge Smith concluded that the decision was lawful and dismissed the claim. Rafferty LJ later refused permission to appeal. The issue on the renewed application was whether the company’s bank balance satisfied the funding requirements and whether the Upper Tribunal had erred in law.

The renewed application for permission to appeal was refused.

1. Construction of the Rules. The requirements in paragraphs 41 and 41-SD of Appendix A to the Immigration Rules concerned the source of funds available for investment. The evidence had to show funding from the appellants’ own funds or from a third party. The company’s balance of £50,047.77 did not satisfy that requirement.
2. Company funds. The company was a separate legal entity and was not itself applying for leave to remain. The appellants could not, without more, treat money in the company’s account as their own. There was no evidence establishing the source of the money or that it was available to be invested. It appeared at most to have been generated by trading.
3. Policy guidance. Paragraph A20 of the respondent’s Policy Guidance stated that money held in a bank or business bank account was not counted as investment, and that money should be fully used in the business rather than held in the business account. The guidance therefore weakened, rather than strengthened, the appellants’ argument.
4. Judicial review. The Upper Tribunal had carefully considered the challenge and made no error of fact or law. There was no irrationality or Wednesbury unreasonableness in the respondent’s decision. The appellants’ disagreement with the original decision did not provide a basis for judicial review or permission to appeal.

1. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Smith concluded on 4 August 2016 that the Secretary of State’s decision was lawful and that the judicial review claim failed. Detailed reasons were provided on 12 August 2016.
2. Court of Appeal (Civil Division): Rafferty LJ refused permission to appeal on 5 July 2017. On oral renewal, Coulson LJ refused the renewed application for permission to appeal: [2018] EWCA Civ 1163.