R (on the application of Wang and another) v Secretary of State for the Home Department

The Immigration Rules must be construed contextually and purposively. Their requirements must be applied to the facts realistically and without blinkers. A points-based system does not prevent a decision-maker from considering a pre-arranged, multi-step scheme as a whole when deciding whether its specified conditions are genuinely satisfied.

For the Tier 1 (Investor) route, loaned money was under an applicant’s control only if the applicant had a real choice about its use and destination before investment. The choice could be restricted, but could not be illusory or wholly pre-ordained by the scheme’s architecture. Legal documentation viewed in isolation could not establish control where the practical reality showed that others retained exclusive control.

Ms Wang participated in the Maxwell Scheme, under which she paid £200,000 and obtained a £1 million loan intended to satisfy the Tier 1 (Investor) requirements. The scheme’s arrangements pre-destined the loan money for investment in Eclectic Capital Ltd, a company controlled by the scheme’s promoters.

The Secretary of State refused leave to remain. The Upper Tribunal dismissed Ms Wang’s judicial review claim in [2019] UKHT 393 (IAC), holding that the control requirement was not satisfied and that Eclectic was an excluded investee. The Court of Appeal allowed her appeal in [2021] EWCA Civ 679; [2021] 4 WLR 70 and quashed the refusal.

The principal issue before the Supreme Court was whether “money under his control” in paragraph (b)(ii) of box 1 in Table 8B of Appendix A to the Immigration Rules required the applicant to have a real choice about the loan money’s use and destination. The court also considered whether the Rules permitted the Maxwell Scheme to be assessed as a whole.

1. Appeal allowed unanimously. Lord Briggs delivered the judgment, with which Lord Kitchin, Lord Burrows, Lady Rose and Sir Declan Morgan agreed. The Secretary of State’s refusal decision was restored.

2. The Immigration Rules are statements of administrative policy, but their interpretation does not materially depart from general principles of construction. They are construed sensibly according to their natural and ordinary meaning, in their context and in light of their purpose. Their application to the facts requires a realistic and unblinkered approach: Mahad v Entry Clearance Officer [2009] UKSC 16 and Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16 applied.

3. The efficiency, transparency, objectivity and predictability of the points-based system did not require each step of a pre-ordained scheme to be examined in isolation. A decision-maker was entitled and obliged to examine the scheme as a whole when deciding whether an express points-scoring condition was satisfied. This did not permit refusal merely because an applicant or scheme appeared inconsistent with the system’s general suitability objectives after all express conditions had been met.

4. In paragraph (b)(ii) of box 1 in Table 8B, “control” was distinct from ownership and required a real choice about the use and destination of loaned money before its investment. The choice need not be unfettered. A restricted range of investments or reasonable lender approval might remain consistent with control. The requirement demanded more than the absence of third-party security under paragraph 61A.

5. The Court of Appeal’s nominee-based interpretation was too narrow. It treated control merely as an aspect of beneficial ownership, rendered the separate control requirement in paragraph (a) redundant and deprived “control” of its ordinary meaning. The common purpose of the regime’s control requirements was to ensure that applicants made their own decisions about the specified assets, investments and money.

6. Viewed realistically and as a whole, the Maxwell Scheme gave Ms Wang no choice over the loan money’s use or investment. Its destination was pre-ordained by the scheme’s architecture and remained under the control of the promoters and their companies. The Secretary of State’s conclusion that Ms Wang lacked control was rational. She therefore failed to obtain the 30 points available under box 1.

7. It was unnecessary to decide whether Eclectic was a “pooled investment vehicle” excluded by paragraph 65(b), whether the Secretary of State could withdraw her earlier concession, or whether relief should be refused under section 15(5A) of the Tribunals, Courts and Enforcement Act 2007.

1. United Kingdom Supreme Court: The Secretary of State’s appeal in [2023] UKSC 21 was allowed unanimously. The Court of Appeal’s order was reversed and the refusal decision restored.
2. Court of Appeal: In [2021] EWCA Civ 679; [2021] 4 WLR 70, the court allowed Ms Wang’s appeal. It held that the loan money was under her control and that Eclectic had not been shown to fall within paragraph 65(b) of Appendix A to the Immigration Rules. It quashed the refusal decision.
3. Upper Tribunal: In [2019] UKHT 393 (IAC), the tribunal dismissed the judicial review claim. It upheld the Secretary of State’s conclusions that Ms Wang lacked the required control and that Eclectic was an excluded investee.