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Tier 1 Entrepreneur case law update

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Iqbal & Dependants v SSHD [2015] EWCA Civ 169

I wrote a few weeks ago about the importance of ensuring that Tier 1 Entrepreneur applications are made correctly.

These applications are not straightforward which may be the reason why they have a refusal rate of over 70%. 

We have historically dealt with a number of appeals for applications that were refused on the basis that a document was either missing or not in the correct format. Common mistakes for Tier 1 Entrepreneurs switching from Tier 1 Post Study Work included;

Mistakes in their contracts (missing contact details etc)

Mistakes in their adverts (missing name of individual applying)

Mistakes in the bank letters (missing certain details).

And there have been instances where specified documents have not been provided and we have had a good success rate with these appeals.

Those days are now over and it is important for applicants to plan months in advance of applying to ensure compliance with the rules.

A frequent issue for Entrepreneurs making joint applications or relying on third party funding have faced is that of providing a bank letter from the third party’s bank confirming that the funds are available for the applicant’s  use.

Case law has confirmed that the rules are clear and what is required is a letter from the bank of the third party account holder to confirm that the applicant has access to the funds.

It has been argued that this is not possible as the applicant is usually not named as a signatory on the third party account and the bank is therefore reluctant to produce such a letter. The problem has now been put to rest in the case of Iqbal & Dependants v SSHD [2015] EWCA Civ 169 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/169.html).

 LJ Sullivan says;

Subsequent to the grant of permission to appeal in this case, the Upper Tribunal has considered in three linked cases - Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – "provided to" [2014] UKUT 296 (IAC), Durrani (Enterpreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC), and Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC) - whether a literal interpretation of requirements (6), (9) and (10) in sub paragraph 41-SD(a)(i) would produce absurd results. In Fayyaz the Upper Tribunal said in paragraph 27 of its determination:

"The ingredients of the first refusal reason were, therefore, the failure of the Pakistani Bank to provide in either of its communications the full address, landline phone number and any email address of the third party funder. The conclusion that the requirement in the Rules that the bank letter contain this information does not give rise to any absurdity or anomaly is, in our view, easily made. This conclusion is driven by two considerations. The first is that there is no evidence lending weight to the Appellant's argument. Evidence of absurdity could conceivably have been provided by the Appellant, her solicitors, the bank or the third party funder. There is no evidence from any of these sources. The second consideration is that, viewed purely objectively and in the abstract, there is no detectable absurdity or anomaly. The requirement that the bank provide this information does not give rise to any ascertainable insurmountable hurdle or impossibility. On the contrary, we readily infer that the information in question would be easily available and, further, that a genuine third party funder would be willing to provide it to the bank and to authorise its disclosure to the Secretary of State. The Appellant's absurdity argument is further confounded by the evidence of a fully compliant bank letter (albeit provided belatedly) in two of the related appeals, the combined cases of Akhter and Maqbool: see [9] of our determination in those cases. Furthermore, there was no contention or, more important, evidence that any provision of Pakistani banking law OR internal bank rule on regulation OR bank/customer contract precludes disclosure of the information required by the Rules and we have no warrant for making an inference to this effect. Thus the first ground of appeal must fail."

In Durrani the Upper Tribunal said in paragraphs 12 and 13 of its Determination:

"12. All of the requirements listed in paragraph 41-SD(a)(i) of the Rules are to be construed reasonably and sensibly, in their full context. Approached in this way, we consider it clear that the letters required from banks or other financial institutions are not designed to provide, and do not commit them to, any form of guarantee or assurance to any party. Rather, the function of the prescribed letters is to attest to the state of the relevant bank account on the date when they are written and to provide certain other items of information designed to confirm the authenticity of the application for entrepreneurial migrant status and its economic viability. The letters do not commit either of the banks, whether the applicant's own bank or that of the third party, to releasing a specified sum of money in order to finance the proposed business venture. Furthermore, we consider that there can be no conceivable difficulty in the third party bank, with its customer's consent, expressing its understanding, based on the customer's instructions, that the use of specified funds in the customer's bank account/s is contemplated or proposed by the customer for the purpose of financing the applicant's proposed business venture. A simple statement to this effect, based on the customer's instructions to the bank, is less onerous and intrusive than the disclosure of the customer's name, account number and account balance. We consider that sub-paragraphs (6) and (9) are to be construed in this uncomplicated, reasonable and sensible fashion.

"13. We are not persuaded that there is any principle of United Kingdom banking law precluding the construction of the relevant provisions of the Rules which we have espoused above. The relationship of banker and customer is contractual in nature. The bank owes a duty of loyalty and confidentiality to the customer, sometimes described as a duty of secrecy: see Jones - v - Law Society [1969] 1 Ch 1, 9, per Diplock LJ. However, as the leading authority of Tournier - v - National Provincial and Union Bank of England [1924] 1 KB 461 makes clear, the implied duty of confidentiality does not apply where the customer consents to the bank disclosing the information in question. Bankes LJ, having asked, rhetorically, what are "the qualifications of the contractual duty of secrecy implied in the relation of banker and customer", continued, at 473:

'On principle I think that the qualifications can be classed under four heads: (a) where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.'

[Our emphasis.]

While the first of these four qualifications, or exceptions, could also conceivably, apply to paragraph 41-SD(i) and (ii) of the Immigration Rules, we would observe that we received no argument on this point. What is clear beyond peradventure, in our estimation, is that the disclosure by a bank of information pertaining to a customer's account is lawful where the customer consents. No argument to the contrary was developed on behalf of the Appellant."

In my judgment, the inference drawn by the Upper Tribunal in paragraph 27 of Fayyaz and the Upper Tribunal's conclusions in paragraphs 12 and 13 of Durrani were manifestly correct

For further information contact: Jahangir Moghal  and Qunmber Ehsan

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