Wang & Anor, R (On the Application Of) v Secretary of State for the Home Department

For a points-based immigration regime, money is under an applicant’s control where it is personally available and the applicant retains the power to direct its use for a qualifying investment. Control concerns availability and direction, not a choice among several qualifying investments. A restriction requiring investment in one qualifying vehicle is therefore not necessarily fatal. An express list of excluded investment vehicles must be applied as a hard-edged rule. An investment is not excluded merely because it shares characteristics with listed vehicles. The Immigration Rules must be construed objectively, with clarity and predictability for applicants.

Ms Wang and her dependent son sought further leave to remain as Tier 1 (Investor) Migrants. Their applications relied on a scheme under which a regulated lender advanced £1 million, paid directly into Eclectic Capital Ltd, and the funds were then converted into preference shares. The Secretary of State refused the applications, finding that the funds were not wholly under Ms Wang’s control and that Eclectic was an excluded investment under paragraph 65(b) of Appendix A.

The Upper Tribunal dismissed the judicial review claims, holding that the arrangements left Ms Wang no real choice but to invest in Eclectic and that the investment shared characteristics of the listed exclusions: [2019] UKUT 00393 (IAC). The appeal concerned whether those conclusions were legally open and whether paragraph 65(b) permitted exclusion by analogy.

Disposition. The appeal was allowed. Popplewell LJ gave the leading judgment. Nugee LJ agreed, and Underhill LJ also agreed while adding separate observations.

1. Construction. The Immigration Rules are statements of administrative policy and must be construed objectively according to their natural and ordinary meaning, read in the context of the Rules as a whole and the function they serve. Published guidance may assist where it adopts a lenient interpretation, but extraneous material cannot justify a harsher construction. The approach was supported by M(O) Nigeria v Secretary of State for the Home Department [2009] UKHL 25, Mahad v Entry Clearance Officer [2009] UKSC 16 and Pokhiryal v SSHD [2013] EWCA Civ 1568.
2. Control. The control requirement in Table 8B, read with Rule 245ED(e), is directed to the personal availability of the applicant’s assets or loan entitlement. Under alternative (b)(ii), the relevant money may be the chose in action represented by an enforceable loan agreement and need not pass through the applicant’s hands. Paragraph 61A gives an example of money treated as outside control; it is not an exhaustive definition.
3. Application to the scheme. The Secretary of State was entitled to infer from the agreements, the parties’ connections, the unattractive investment terms and the conduct of the other participants that Ms Wang was in practice required to invest in Eclectic. Commercial viability and motive could inform that factual inference, consistently with R (Mudiyanselage) v SSHD [2018] EWCA Civ 65. However, where the applicant retains the power to direct the loan into a qualifying investment, a restriction to one qualifying vehicle is not fatal. The Secretary of State and Upper Tribunal therefore erred in law by treating the absence of a choice among qualifying investments as defeating control.
4. Qualifying investment. Paragraph 65(b) excludes investment by way of the four entities listed in it. It does not permit exclusion merely because an investment shares their characteristics. The hard-edged, clear and predictable operation of a points-based system, emphasised in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517, operates for applicants as well as the Secretary of State. The contrasting drafting of paragraph 65(c) reinforced that conclusion. Since it was conceded that Eclectic was not one of the listed entities, the conclusion under paragraph 65(b) could not stand. The court expressed no concluded view on whether Eclectic was a pooled investment vehicle.

Additional observations. Underhill LJ noted that the appeal had to be decided on the Secretary of State’s actual decision and the case advanced below. He criticised the quality of the drafting of the Immigration Rules, referring to Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, and observed that the scheme’s apparent policy objection could not overcome the Rules as drafted.

• Court of Appeal (Civil Division) — appeal allowed: [2021] EWCA Civ 679.
• Upper Tribunal, Immigration and Asylum Chamber — judicial review applications dismissed: [2019] UKUT 00393 (IAC).