England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE KEKIC
IA/49692/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/12/2016

Lady Justice Rafferty:

1. This is the judgment of the court.
2. SI an Indian national was on 27^th February 2009 granted leave to enter the UK as a student, later extended until on 1^st October 2012 the Respondent Secretary of State for the Home Department ("SSHD") refused his application for leave to remain as a Tier 1 (Post Study Work) Migrant since he failed to satisfy the maintenance requirement under Appendix C of the Immigration Rules ("IR").
3. On 5^th December 2012 for an appeal listed on 13^th December 2012 the Appellant submitted evidence of his parents' bank account and their affidavits confirming their financial support for him. Three days before the hearing the SSHD withdrew the 1^st October 2012 decision.
4. The Respondent having reviewed the evidence available withdrew the decision of 1^st October 2012. On 5^th November 2013 after 11 months she made a fresh decision maintaining the refusal. The decision letter ("DL"), of which more later, read in part:

"…Parental Sponsorship of funds to demonstrate the Maintenance requirement is permitted under Tier 4 Student applications but not permitted under Tier 1 applications. In addition, the evidence you submitted is post-dated the date you made your application for leave i.e. 05 April 2012 – and is, therefore, unacceptable…"

5. On 29^th June 2015 (sealed 22^nd July 2015) Davis LJ granted permission to appeal to this court.
6. This appeal originally raised two issues but in oral development was refined to a different one which we gave leave to argue: Did the SSHD misinterpret "nominee"? The Respondent protested at the late surfacing of the point but for her Mr Bird confirmed (and amply demonstrated) that he was more than capable of dealing with it.
7. This judgment neither establishes precedent nor requires other than the application to the particular facts of the legal framework. We thus do no more than identify our conclusion.
8. Appendix C of the IR sets out in points based system ("PBS") applications the requirement that at the date of application as a Tier 1 Migrant an individual should have had under his own control at least £800 for a consecutive 90-day period. On 5^th April 2012 in his unsuccessful application for further leave to remain this Applicant submitted his Lloyds TSB bank statements covering 9^th January 2012 to 4^th April 2012. To support his application they should have run from 6^th January 2012. In any event on 9^th January 2012 his balance had fallen below £800.
9. The basis for refusing the application was that for those 3 days, 6^th-9^th January 2012, at the start of the 90-day period, he did not produce evidence and/or the evidence did not show that his account had a balance of £800.
10. For the appeal hearing listed for 13^th December 2012 he submitted from ICICI Bank in India statements from his mother's account dated 1^st November 2011 to 28^th March 2012, a letter from ICICI Bank describing him as a nominee on the account, affidavits from his parents, and his own bank statements from 9^th January 2012-1^st August 2012.
11. The Appellant's position has been that for the 3 days he was unable to produce evidence and/or his balance was below £800 he could rely on funds in his mother's account. He submitted details of her bank account which showed from 3^rd-11^th January 2012 a credit of circa £3560.
12. Appendix C reads in part:

"…the funds must have been under his own control…"

13. The mother's affidavit includes:

"…My son is the nominee of this account…the funds ….can be utilised by my son on demand…"

14. A letter dated 10^th October 2012 from ICICI Bank confirmed that the Appellant is a nominee. Mr Balroop for the Appellant explained his instructions that in India a nominee has access to the funds on demand. He argued that the Appellant would thus satisfy Appendix C because the funds were under his control. Mr Bird understandably bridled at the advancement of such an argument "on instructions" but any difficulty fell away, as we shall see.
15. We can be confident the decision-maker had read the bank statements since the letter includes:

"..the evidence you submitted …post-dated the (application date)"

The decision-maker, it is suggested, took the view that the parents' bank statements ("parental sponsorship") were not funds in the control of the Appellant.

16. The Ground advanced relies upon "nominee" in Indian banking law meaning "beneficiary who has control of the funds for his own purposes". That, the SSHD argues, is inconsistent with the evidence from the Appellant and his parents that the latter were willing to provide financial support. One is either sponsored, importing a decision made by the sponsors, or one is in unfettered control, requiring no decision other than one's own. The two concepts, the SSHD submits, are mutually exclusive.

Discussion and conclusion

17. The SSHD's decision is set out in a letter of 5th November 2013.  Although this is a PBS case, there are five pages of fairly dense typescript which recite the standard relevant paragraphs. One page shows in tabular form the points awarded.  The reasoning supporting the decision is confined to two sentences in a box on page three.  The first sentence does no more than recite the policy that parental sponsorship is not permitted for Tier 1 applications.  It is silent as to any reasoning for the decision maker's reliance on that policy and in particular does not apply the policy to the evidence.  The Applicant, and the tribunal, are left to navigate to their own conclusions about whether the evidence submitted is rejected and if so why.  The second sentence - "parental sponsorship …is not permitted…in addition the evidence submitted is post-dated the date you made the application…" - reads as if the decision maker considered the additional evidence and rejected it as not submitted at the time the application was made.  Both members of this court so construed it. So too did the Upper Tribunal judge and the Applicant.  We were told in submissions that we are all wrong and that the sentence intended to convey that some of the additional evidence relates to a time period which is irrelevant.
18. As the Senior President of Tribunals said on 16^th November 2016 in evidence to the Constitution Committee of the House of Lords and repeated in dialogue during this hearing a decision letter which to the extent we read here lacks clarity and reasoning cannot withstand scrutiny by this court.  It is inappropriate to expect an applicant who may not enjoy publicly funded legal representation to construe such poor drafting. Nor should the administration of justice oblige a tribunal to expend public time and money itself attempting that task.  Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant's evidence has been rejected and c) the reasons for coming to the conclusion reached.
19. In our view a reader of the decision letter would struggle to understand b) and c) above. Three judges and one barrister certainly did. That is enough to dispose of this appeal, which we allow.
20. We give permission for this judgment to be reported.