Junied, R (on the application of) v Secretary of State for Home Department

The Points-Based System requires strict compliance with its specified documentary requirements. Fairness does not create an unexpressed residual discretion within the system to waive those requirements. Any wider exceptional immigration discretion is outside the system and requires a separate application.

A claimant who says that a requirement is impossible to fulfil must establish actual impossibility. A particular bank’s practice, and unclear evidence from other banks, do not establish that no regulated institution can provide the prescribed confirmation. A rule is not ultra vires merely because compliance may be difficult, or impossible in an individual case, where it is rational, policy-based, capable of fulfilment and applied equally.

The applicant sought leave to remain as a Tier 1 (Entrepreneur) Migrant under the Points-Based System. His proposed third-party funder held more than £200,000 with Halifax Bank. Halifax declined to give the confirmation required by paragraph 41-SD(c)(i)(10) of Appendix A to the Immigration Rules.

The Secretary of State refused the application because the bank letter did not provide the prescribed confirmations. The applicant sought judicial review in the Upper Tribunal. Permission was refused on the papers and again after an oral renewal before HHJ Eyre QC. He appealed, contending that strict application was unfair because compliance was impossible, and, by an amended ground, that the requirement was ultra vires.

Disposition

The court formally granted permission to appeal but dismissed the appeal on both grounds.

1. The relevant provisions of the Immigration Rules are prescriptive. An applicant who does not meet their requirements is refused leave. The Points-Based System deliberately favours certainty, consistency, predictability and administrative simplicity over flexibility. The established approach to specified documents required precise compliance.

   The court applied the reasoning in Durrani and Iqbal. The required bank confirmation was a workable and fair means of establishing the availability and authenticity of third-party funds. The applicant did not supply a letter satisfying paragraph 41-SD(c)(i)(10), and the refusal therefore followed under paragraph 245DD.

2. There was no residual discretion within the Points-Based System to disapply a specific requirement on general fairness grounds. Such a discretion would negate the scheme’s intended operation. A possible general exceptional discretion outside the Rules did not assist the applicant, because it required a separate application. The fairness principles invoked from ex parte Doody concerned a materially different context.

3. The evidence did not show that compliance was impossible. Halifax’s practice did not establish that it could not issue the letter, nor that another regulated institution could not do so. The letters from three other banks were inadequately contextualised and ambiguous, while the respondent had produced contrary HSBC letters. The Upper Tribunal was entitled to find serious difficulty, rather than impossibility.

4. The ultra vires ground had not been advanced below and the court declined to entertain it for the first time on appeal. In any event, the requirement was rational, policy-based, capable of fulfilment and non-discriminatory. Difficulty, or even individual inability, to comply did not render it ultra vires.

• Court of Appeal (Civil Division) Formally granted permission and dismissed the appeal: [2019] EWCA Civ 2293.
• Upper Tribunal (Immigration and Asylum Chamber) HHJ Eyre QC refused the renewed oral application for permission to bring judicial review. An earlier paper application had been refused by Upper Tribunal Judge Coker. No citation was stated.