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 Smith
JR/11068/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/05/2018

Lord Justice Coulson :

1. On 2 July 2014, the respondent refused the appellants' application for Leave to Remain ("LTR") under Tier 1 (Entrepreneur) of the points based system. Davis LJ granted permission to bring judicial review proceedings. The appellants and the respondent agreed, by a consent order dated 24 March 2016, that the substantive claim would be remitted to the Upper Tribunal.
2. On 4 August 2016, UTJ Smith concluded that the respondent's decision was lawful and that the application for judicial review failed. Permission to appeal to the Court of Appeal was refused. The detailed reasons were provided on 12 August 2016.
3. The appellants appealed to the Court of Appeal. On 5 July 2017, that application was refused by Rafferty LJ. The appellants now renew that application orally.
4. The crux of the point in this case is straightforward. Both UTJ Smith and Rafferty LJ concluded that the appellants could not show that they had the necessary £50,000 available to them to invest in the business in accordance with paragraph 41 and the sub-paragraphs of 41-SD of Appendix A to the Immigration Rules. They could show that the company, in which they were the shareholders, had £50,047.77 in its bank account, but it was concluded that that money was irrelevant: the Rules required that the evidence of funding available to invest had either to be from the appellants' own funds or from a third party. The £50,000 odd in the company's bank account was found to be neither.
5. UTJ Smith's judgment was very detailed. As Ms Brown properly noted, the heart of it is at paragraphs 17 -25. It cannot be said that the judge failed to address every point that had been raised. Moreover, as a matter of construction, I consider that the judge's interpretation of the rules was correct.
6. On behalf of the appellants, Ms Brown, who has not appeared for them before, made a variety of points this morning about the wording of the paragraphs in the Rules and saying, in particular, that the money in the company's account complied with paragraph 41-SD as comprising funding available to "the applicants' business". There was also a wider submission, put in a number of succinct ways, to the effect that to ignore the money in the company's bank account was an absurd and uncommercial reading of the Rules.
7. Whilst, like other judges before me, I have some sympathy with the appellants' position, I also agree with those other judges that these submissions cannot be sustained. As UTJ Smith makes clear, what matters is the source of the funds available for investment. That is, after all, what LTR is all about. The money already in the company's bank account was not the subject of any evidence as to its source; moreover, there was no evidence that it was available to be invested. At most, it was money apparently generated by trading which did not meet the test in the Rules (see in particular paragraph 24 of the decision of UTJ Smith and Rafferty LJ's written reasons for refusing the application for permission to appeal).
8. There is also a wider point. The company was a separate legal entity. It was not the company who was making an application for LTR. What mattered was the appellants' funds. It is not appropriate in a case like this for the appellants, without more, to seek to claim company money as their own.
9. This morning, Ms Brown took a new point, to the effect that paragraph A20 of the respondent's Policy Guidance supported the applicants' submissions. The part of the paragraph relied on says that money in a bank account or business bank account is not counted as investment in business. If anything, I regard that as contrary to the applicants' case, particularly as the preceding sentence expressly states that "money should be fully used in the business and not held in the business bank account in order to qualify for the award of points". That seems to me to be highly relevant guidance in the circumstances that occurred here. Overall, therefore, I consider the Policy Guidance weakens rather than strengthens the appellants' case.
10. Further and in any event, I consider that this renewed application fails to engage with the underlying point that this is a judicial review. At paragraph 25 of her judgment, UTJ Smith explains how and why, in her view, the respondent was entitled to decide that the funds had already been invested. There is no question of irrationality or Wednesbury unreasonableness. As Rafferty LJ put it, it is simply not possible to see where the Upper Tribunal fell into error.
11. In short, the appellants are aggrieved as to the original decision and the failure of their application for judicial review. Whilst, as I have said, I have some sympathy with their position, the application for judicial review was fully and carefully considered and rejected. The Upper Tribunal made no error of fact or law. Its decision cannot be appealed.
12. For all these reasons, therefore, this renewed application for permission to appeal is refused.