England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		18 November 2015

LADY JUSTICE RAFFERTY:

1. This is a second appeal voiced in person by Mr O who seeks to challenge the 12 May 2015 order of Briggs LJ who on paper refused permission to appeal from the decision of the First Tier Tribunal.
2. The applicant is a Nigerian national who was refused leave to remain as a tier one migrant on the basis that he did not meet the maintenance requirements, having insufficient funds. The First Tier Tribunal dismissed his appeal both under the relevant rules and within Article 8. It found that when he claimed reliance on a joint bank account with his brother, he was in breach of the rules since he was not a signatory. The Upper Tribunal dismissed his appeal. A second Upper Tribunal set aside that decision since there had been no consideration of the evidential flexibility test but another Upper Tribunal dismissed his appeal identifying no error of law in the First Tier Tribunal.
3. Originally, there were two applicants, husband and wife, both Nigerian nationals. Mr O is married to Mrs O who applied as his dependent. At the First Tier Tribunal the issue was whether the applicant could provide evidence of sufficient funds. He sought to rely on a bank statement from GT Bank as showing funds in an account held by him and by his brother, Mr Odumuywe Okiowo David, but upon which only the name of his brother appeared. In a letter accompanying his original application for a visa he explained that his name did not appear on the bank statements because it had been added after the account was opened. Consequently, statements of account continued to be issued in the name of his brother. He suggested, and continues to suggest, that this was a feature of the bank's practice and procedure common in the Nigerian banking industry.
4. His brother provided a letter which sought to confirm what the applicant said, and to confirm that the applicant had full access to and control of the funds in the account. That evidence was rejected by the decision-maker as failing to prove the required funds.
5. Before the First Tier Tribunal the applicant relied on a letter from GT Bank dated 5 June 2013. It appeared to suggest that both brothers had full and equal access to and control of the funds as joint signatories, and that the only reason the applicant's name was not on the bank statement was, as he had always suggested, that it was not the practice of the bank to reflect a name later added to an account.
6. Mr O's argument is that he should succeed in this second appeal on the basis that he can demonstrate a compelling reason why he should. That compelling reason he identifies as manifest injustice because germane facts have been ignored. The evidence he presented, he argues, has simply not been taken into account and/or not afforded due weight. The outcome is that the Secretary of State has disregarded her own policy and the process he has endured has been unfair. He agrees that Briggs LJ was correct to say that in play was a question of fact but argues that Briggs LJ failed to see that underpinning that issue of fact were issues of interpretation. The consequence, he argues, is that inadequate examination of and poor judgment upon those underpinning facts amounts to an error of law.
7. Mr O this morning showed me a bundle including a document and attachments headed, "Very urgent!!!" dated 3 November 2015. I have read the bundle. He submits that Mandalia v Secretary of State for the Home Department [2015] UKSC 59 is of benefit to him relying on the Supreme Court's acknowledgment of some difficulty for applicants in navigating the rules, complex as now they are.
8. In my view how Mr O presented evidence of compliance with the rules was a choice for him. What he supplied was insufficient to establish reasonable belief that the bank statement omitted information or was in the wrong format. I can find no procedural error in the First Tier Tribunal. The First Tier Tribunal was not invited to consider the evidential flexibility test, and it is difficult to see how it could be criticised for failing of its own motion to introduce and then to decide it advantageously to the applicant. Refusing permission Briggs LJ wrote,

"This is a second appeal. It raises no important point of principle or practice. The only issue is whether part of the first appellant's evidence of maintenance funds satisfied the Immigration Rules. The FtT held that it did not, because it did not show that the first appellant was a joint holder of the account which appeared to be in the sole name of his brother. This was a simple question of fact, and raised no issue of law at all.

There is no compelling reason why the appeal should be heard."

9. Despite the elegance and thoughtfulness of Mr O's oral submissions I agree with Briggs LJ and this appeal is dismissed.

Order: Application dismissed.