R (Singh) v Secretary of State for the Home Department

The Court of Appeal dismissed the appeal against the Upper Tribunal's refusal of judicial review of a Home Office refusal of further Tier 1 (Entrepreneur) leave. The central legal principles were: (i) documentary fact-finding in judicial review is a matter of fact for the tribunal and the defendant's contemporaneous records (the GCID) are to be accepted unless the claimant applies to cross-examine the relevant witness or the defendant's evidence "cannot be correct"; (ii) the limited evidential flexibility in paragraph 245AA of the Immigration Rules applies only in the narrow circumstances set out in that paragraph and does not convert a wholly different document into the required document; and (iii) the statutory name for payslips is "pay statements" under section 8 of the Employment Rights Act 1996, but the tribunal was entitled to require duplicate payslips as specified by paragraph 46-SD(h)(iv) of Appendix A.

The court upheld the UT's factual finding that it was not shown on the balance of probabilities that duplicate payslips had been submitted, and rejected the submission that schedules or payroll summaries could be treated as payslips under paragraph 245AA. A new point about the wording of the application form (the term "pay statements") was refused for lack of evidential foundation.

Background and procedural history:

• The appellant, an Indian national with Tier 1 (Entrepreneur) leave expiring 26 July 2015, applied for further leave relying on evidence that he had created the equivalent of at least two full-time jobs. Paragraph 46 of Appendix A and paragraph 46-SD(h)(iv) required duplicate payslips for each worker relied on.
• The Secretary of State refused the application by decision dated 23 September 2015 in part on the ground that payslips had not been provided. The appellant commenced judicial review in the Upper Tribunal.
• Permission was initially refused on the papers by UTJ Smith, renewed and granted by UTJ Kekic, and the case heard by UTJ Freeman who dismissed the judicial review. The appellant appealed to the Court of Appeal.

Nature of the claim and issues:

• The claim sought judicial review of the Secretary of State's refusal of leave. The issues before the Court of Appeal were: (i) whether the Upper Tribunal was wrong as a matter of fact to find that the duplicate payslips had not been submitted; (ii) whether paragraph 245AA of the Immigration Rules required the Secretary of State to invite the applicant to remedy a failure to submit the payslips or to exercise flexibility; and (iii) a late point whether the application form's use of the term "pay statements" meant the applicant had complied with the form and should not be penalised where the Rules required payslips.

Court's reasoning:

• On the factual issue the Court of Appeal applied the established rule that the defendant's contemporaneous evidence (the GCID entries and the Secretary of State's evidence) stands unless cross-examination is sought or the evidence cannot be correct. The appellant had not sought cross-examination of the caseworker nor produced witness evidence from himself or his accountants explaining compilation and dispatch. The UT's finding that it was not shown on the balance of probabilities that the payslips had been submitted was therefore not incorrect.
• The Court held that paragraph 245AA permits limited evidential flexibility only in the specific circumstances identified; it does not permit substitution of a different type of document for the exact documents required. Payroll schedules or summaries were different documents, not merely the same document in the wrong format, so paragraph 245AA did not assist.
• The late argument about the wording on the form ("pay statements") was rejected. The statutory term "pay statements" (Employment Rights Act 1996, section 8) does not assist the appellant absent evidential proof he or his agents were misled, and no such evidence was produced.

Disposition: The appeal was dismissed. The court expressed sympathy for the appellant but concluded the inflexible rules and evidential requirements meant the appeal could not succeed.

Appeal dismissed. The Court concluded that the Upper Tribunal was entitled to find on the documentary evidence and the GCID record that the duplicate payslips had not been submitted; the appellant failed to adduce witness evidence or to seek cross-examination to challenge the Secretary of State's contemporaneous records; paragraph 245AA did not permit substituting payroll schedules for duplicate payslips; and the late point about the application form wording lacked evidential foundation.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) where UTJ Freeman dismissed the appellant's judicial review. Permission stages: permission refused on the papers by UTJ Smith, renewed and granted by UTJ Kekic. The Court of Appeal heard the appeal following related guidance from Mudiyanselage [2018] EWCA Civ 65.