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

For Tier 1 (Investor) applications, control has its natural and ordinary meaning. It requires authority to manage or direct the use of the relevant money, asset or investment. It is not confined to legal or beneficial ownership, since it also requires a real choice as to use.

Whether the requirement is met depends on all the circumstances. For an application for further leave, the requirement in paragraph 245ED(e) of the Immigration Rules that assets and investments be wholly under the applicant’s control demands a high level of control. The applicant must establish control of the money when it is invested, assessed on the evidence available at the decision date. Specified documents do not alone establish the substantive requirements.

The expressions in paragraph 65(b) bear their ordinary meanings and do not import technical definitions from other legislation.

Two linked judicial review claims challenged refusals of further leave to remain and indefinite leave to remain as Tier 1 (Investor) Migrants. The applicants had borrowed £1 million and £5 million respectively from Maxwell Asset Management Ltd and the money was paid directly into Eclectic Capital Ltd. Their loans were later converted into preference shares.

The Secretary of State concluded that the applicants had not controlled the borrowed money or its investment destination. She also concluded that Eclectic was an excluded investment vehicle under paragraph 65(b) of Appendix A to the Immigration Rules. One applicant also challenged findings about her personal assets and investment evidence.

The central issues were the meaning and timing of control, the effect of specified documentary requirements, and whether paragraph 65(b) required statutory definitions of the listed investment vehicles.

1. The judicial review applications were dismissed. The applicants could not establish the control required for points under Table 8B or Table 9B of Appendix A to the Immigration Rules.
2. The Tribunal held that “control” bears its ordinary meaning. It is authority to manage or direct the use of the money, asset or investment, as the context requires. It includes choice of use as well as legal or beneficial ownership. The requirement that assets and investments be wholly under an applicant’s control under paragraph 245ED(e) requires a higher level of control than may be present in ordinary commercial arrangements.
3. Control of borrowed money had to exist at the point of investment, although whether that requirement was met fell to be assessed on the material available at the decision date. The provision of specified documents did not itself prove the substantive requirements. The applicant bore the burden of satisfying the Secretary of State, on the balance of probabilities, that the money was under their control.
4. On the evidence available at the refusal stage, the Secretary of State rationally found that the applicants had no free choice as to investing in Eclectic. The commercial terms, the links between the relevant companies, and the applicants’ evidence supported that conclusion. The subsequently disclosed services agreements made the position conclusive: they gave Maxwell authority to manage the investment account, invest the funds, and choose the particular investment instruments. Control was therefore ceded to a third party. Under section 31(2A) of the Senior Courts Act 1981, the claims would in any event have failed even without the alleged errors.
5. Paragraph 65(b) of Appendix A did not incorporate definitions found in other legislation. Its listed terms had their ordinary meanings. Eclectic shared their common feature of pooling investors’ capital for further investments whose final destination was not assuredly an active and trading UK company. The Secretary of State was entitled to treat it as an excluded, non-qualifying investment.
6. The remaining grounds could not affect the outcome. The evidence of one applicant’s assets was insufficient, and paragraph 245AA did not permit a request for further evidence in the circumstances.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal decisions and administrative-review decisions. The Tribunal dismissed both claims.
• Administrative Review: The Secretary of State upheld the refusals on 6 February 2018.
• Secretary of State: Refused the applicants’ Tier 1 (Investor) applications in December 2017.