Awan v Secretary of State for the Home Department

Paragraph 245AA(b)(iv) of the Immigration Rules concerns defects in specified documents themselves. It does not extend to information extraneous to those documents, such as evidence of where or when hard-copy advertising material was published or distributed. Where the provision applies, any request for missing publication information need only be made in general terms. Permission to appeal was refused because the proposed challenge had no realistic prospect of success.

The applicant, a Pakistani national, applied for further leave to remain as a Tier 1 Entrepreneur Migrant. His application was refused, and Upper Tribunal Judge Craig refused permission to apply for judicial review on 6 May 2016.

He sought permission to appeal. He relied on hard-copy leaflets, flyers and brochures which contained the required business information, but had not supplied evidence of their local or national publication. He argued that the Secretary of State should have requested that information under paragraph 245AA(b)(iv) of the Immigration Rules. The central issues were whether that provision applied to information external to the documents and, if so, whether the applicant could have supplied sufficient evidence.

1. Permission to appeal refused. The Upper Tribunal’s decision disclosed no arguable error with a realistic prospect of success.
2. Paragraph 41-SD(e)(iii)(1) of the Immigration Rules required advertising or marketing material covering the specified period and showing the applicant’s name and business activity, together with evidence that hard-copy material had been published locally or nationally. A leaflet or brochure did not itself show how or where it had been distributed, so that publication information had to be supplied separately.
3. Paragraph 245AA(b)(iv) applied where a submitted specified document did not contain all the information required to be contained in that document. Its natural and contextual meaning was confined to defects in the specified documents themselves. It did not cover information which was necessarily extraneous to the documents, such as evidence of their publication or distribution. The reference to requesting the “correct documents” reinforced that construction.
4. The court therefore did not need to decide whether the applicant would have been able to provide adequate publication evidence. In any event, the judge observed that any request under paragraph 245AA(b) would have needed only to seek, in general terms, information of national or local publication. It would not have required a request for particular details. That observation was hypothetical and not necessary to the decision. The subsequent letter from the printer arguably supplied only minimal information and did not clearly establish distribution before 11 July 2014 or identify the same materials.

1. Court of Appeal (Civil Division): Permission to appeal was refused on 27 July 2018.
2. Upper Tribunal (Asylum and Immigration Chamber): Upper Tribunal Judge Craig refused permission to apply for judicial review on 6 May 2016.