The Court of Appeal has made yet another unfavourable decision – unfavourable to applicants that is – about the points-based system, this time in connection with the Tier 1 Entrepreneur route. (This visa route is now closed to new entrants but still available for those applying for extension or settlement.)
Mr Junied, a national of Pakistan, had applied in-country for leave as a Tier 1 Entrepreneur but the application had been refused by the Home Office.
The reason for refusal was this. His brother, Mr Babar, had made £200,000 available to him for investment into the company. Mr Babar had tried to provide – as the relevant immigration rules require – a letter from the Halifax Bank confirming the existence of the money and also confirming some other details. The required form of the letter was detailed and prescriptive.
Unfortunately the Halifax would not provide such a letter. But what they did do was to provide a bank statement and a letter from the bank manager explaining why they could not provide such a letter – ie it was not their policy. This letter finished with the words “I apologise if this causes you any inconvenience…”.
Well, it did cause some inconvenience, because the application was refused on the basis that it had not included a letter in the required form.
Administrative Review with the Home Office followed. Mr Junied claimed that it was not fair for the application to be refused for the lack of something that it had been impossible for him to fulfil. But this application was also unsuccessful.
Then came Judicial Review before the Upper Immigration Tribunal, but also unsuccessful, and ultimately the matter ended up before the Court of Appeal.
Now, the average intelligent layperson might think that there was some justice on Mr Junied’s side. After all, it really was not his fault, and why should he be made to suffer because of the arbitrary unwillingness of the bank to provide the letter he needed for a successful application?
But the intelligent layperson would, by definition, not be armed with extensive knowledge of the relevant caselaw. However, the Court of Appeal was, and it trawled through a number of decisions in the same sort of legal area, and this was not helpful.
The court adduced ringing phrases from previous cases such as “… the PBS … puts a premium on predictability and certainty at the expense of discretion” and “The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended… and “… occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process…”.
And, on a different tack, the court said that on the evidence before it it had not been proved that it was impossible for the Halifax to provide such a letter and, in any case, the applicant could have gone to a different bank to try and get such a letter.
The court also looked separately at the issue of fairness but, alas, this did not help Mr Junied either. The clearly stated strict principles of the points-based system did not admit of any possibility of the exercise of discretion on the grounds of unfairness.
The court also considered whether the relevant immigration rules might be ultra vires (ie outside the power of the authorising Act of Parliament) but again, no joy for Mr Junied. The court held that these rules are “rational and policy based… though strict, not arbitrary…”.
So Mr Junied was unsuccessful. This decision seems harsh, especially in some parts. But the court argued in extensive detail that it was in line with previous decisions, and so there we are.
If you are involved or might be involved in a points-based system application (and particularly perhaps Tier 1 Entrepreneur or Tier 1 Investor) you are well advised to get good legal advice at an early stage to ensure that your evidence is going to meet the requirements.