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England and Wales Court of Appeal (Civil Division) Decisions
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Haque v Secretary of State for the Home Department [2025] EWCA Civ 826 (10 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/826.html
Cite as:
[2025] EWCA Civ 826
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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice
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Neutral Citation Number: [2025] EWCA Civ 826 |
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Case No: CA-2024-001373 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
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Strand, London, WC2A 2LL
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10 March 2025 |
B e f o r e :
LADY JUSTICE ELISABETH LAING
____________________
Between:
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HAQUE
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Applicant
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- and –
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Respondent
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____________________
Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
____________________
MR M FAZLI appeared on behalf of the Applicant
MR M SMITH appeared on behalf of the Respondent
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HTML VERSION OF JUDGMENT APPROVED
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Crown Copyright ©
LADY JUSTICE ELISABETH LAING:
- This is my decision of an adjourned application for permission to appeal. On this adjourned application, the Appellant has been very ably represented by Mr Fazli and the Secretary of State has been very ably represented by Mr Smith. I am very grateful to both of them for providing detailed Skeleton Arguments for the hearing which, I read before the hearing began.
- I am going to set out the background to this application, from the written reasons which I gave for calling this hearing in. The Appellant, "A", is a citizen of Bangladesh. On 9 December 2022, he applied for entry clearance as a visitor for himself and for his dependents. I will call that "Application 1". The provisions of the rules which are relevant to such applications are paragraphs V4.2 to 4.6 of appendix V to the Immigration Rules, (HC395 as amended) ("the Rules"). Application 1 was refused in a decision dated 24 January 2023, ("Decision 1").
- The covering letter and all later covering letters said that any future applications would be considered on their merits, but that any future application was likely to be refused, "unless the circumstances of your application have changed". The reasons in Decision 1 and in related decisions indicated that the entry clearance officer had taken into account the application and any additional relevant information which A had provided, and A's immigration history. The entry clearance officer said that A had claimed to earn 600,000 Taka a year from his business. He had provided a business bank statement for his application. That account showed funds available for the activities of a business, but A had not shown that they were available to support anything else. He had not shown that he was a signatory to the business account. Even if he was the sole owner of the business, the funds did not necessarily reflect A's financial circumstances. The entry clearance officer as not satisfied, therefore, that the bank statements supported A's stated circumstances. Those factors damaged the overall credibility of A's application. The entry clearance officer was not satisfied that the relevant provisions were met.
- A applied again in February 2023, ("Application 2"). A referred to the refusal of Application 1 and said that he had not provided his personal bank statement with Application 1 (see page 7 of Application 2). One of the classes of documents A was asked to provide was "Evidence of funds available to you, which are clearly accessible to you" (page 10 of Application 2).
- The entry clearance officer refused application 2 in a decision dated 14 March 2023, ("Decision 2"). The entry clearance officer was not satisfied that A had met the requirements of paragraphs V.2 to V.6 of appendix 5 to the Rules. Application 1 had been refused. Each application was considered on its individual merits in line with the Rules. A had said he was self-employed and earned over 900,000 Taka a month. A had enclosed a trade licence and a business bank account. Those documents did not prove that A owned the business, and there was no evidence of the nature of A's activities. The entry clearance officer was not satisfied that A provided an accurate picture of his personal and economic circumstances, which led the entry clearance officer to doubt A's true intentions in visiting the United Kingdom.
- A had also provided a statement from a personal bank account. This did not show where the funds in that account came from. It was not clear that they came from A's stated self-employment. The expenditure from that account bore little relation to A's stated expenses. The debts in less than one month were more than 13 times greater than A's stated expenses. There were other similar discrepancies in the statement. All those factors damaged the overall credibility of A's application. The entry clearance officer was not satisfied that the relevant test was met.
- A further refusal was dated 25 July 2023 ("Decision 3"). The entry clearance officer referred to an earlier refusal, but was not satisfied that A met the requirements of the rules on this occasion. The entry clearance officer listed A's stated income, expenses and savings, and the amount A intended to spend on his visit. He had submitted statements from the same two bank accounts. The documents did not show the source of the relevant funds. There were periods when the business made no profits at all. The entry clearance officer noted A's claimed annual income had increased by 54 per cent since the last application, less than two months previously. There was no explanation for such an increase in such a short time. The notarised business licenses could not be independently verified and did not confirm A's stated financial circumstances. The stated annual income was "self-declared" and not independently verified. The entry clearance officer was not satisfied that A had presented a reliable reflection of his financial circumstances, or that the proposed trip was proportionate to A's income and finances.
- A's intended expenditure on the trip was almost 72 per cent of the funds available with his personal account. He had submitted a hotel booking for only four people. Given that that and the various costs involved it was not credible that the expenditure was in line with A's intended activities, the entry clearance officer was not satisfied that the test was met.
- The entry clearance officer reconsidered the refusal in a decision dated 9 November 2023 ("the Decision"). The refusal had been reviewed in the light of a further complaint. The entry clearance officer repeated that he had refused the application because he was not satisfied that the relevant provisions of the Rules are met. The entry clearance officer explained why in eight bullet points. The entry clearance officer summarised A's claimed income, savings and expenses of the trip. The entry clearance officer was aware that Bangladesh was a largely cash-based society, but there was no satisfactory evidence, such as invoices or receipts, to support the credits and debits in the business account, or satisfactory evidence about the origin of the funds in that account, so he was not satisfied that the bank statements were an accurate reflection of A's financial circumstances. He could not be satisfied that the sums going into A's personal account were business profits.
- The entry clearance officer appreciated that business income can fluctuate, but referred to the unexplained increase in A's income, to which I have also referred. The entry clearance officer repeated his reasoning about the weight he could give to notarised business licenses and other documents. I have also referred to that already, and the reasoning about the relationship between the amount that A proposed to spend on the trip, and the amount in his personal account. I have also referred to that already.
- The entry clearance officer added that A had said in his application that he had no remaining dependents in Bangladesh, but was travelling to the United Kingdom with his wife and three children. The lack of familial ties in Bangladesh and the entry clearance officer's concern with A's finances gave the entry clearance officer further reason to doubt whether the relevant test was met.
- A's solicitors sent a pre-action protocol letter dated 27 November 2023. The Secretary of State replied on 30 November 2023, maintaining the refusal. A applied to the Upper Tribunal (Immigration Asylum Chamber) ("the UT") for judicial review of the decision. The UT refused permission to apply for judicial review on the papers, and after a renewal hearing. A appeals against the second of those refusals.
- In its judgment after the renewal hearing, the UT said that the grounds for judicial review were diffuse and confusing, but that A's counsel had helpfully focussed on three points.
1. The entry clearance officer's concerns about A's finances, particularly the lack of verifiable income when A claimed previously to have made mistakes about his income.
2. A's plan to leave no dependent relatives in Bangladesh.
3. The hotel booking. It was not necessary for A to book for his youngest child.
- The UT held that the entry clearance officer was unarguably entitled to have concerns. The tax registration document did no more than to confirm that A was registered for tax, the accounts were not audited, and depended on what A told his accountant. The entry clearance officer was concerned about the source of the money claimed as his business income in the absence of verifiable records. The entry clearance officer was also entitled to be concerned about the potential inconsistency in the hotel booking, and that the costs were such a high proportion of A's available funds. The entry clearance officer was also entitled to be concerned that A planned to bring his immediate family to the United Kingdom. The fact that wider family members stayed in Bangladesh was beside the point.
- On appeal to this court, there was one ground of appeal. A argued that the UT rejecting the arguments that the entry clearance officer had acted irrationally in refusing the application and had taken into account irrelevant considerations and/or had failed to take into account relevant considerations. Ground 1 had three components. It is notable that that ground of appeal did not have a component which was based on a lack of fairness in the approach taken by the entry clearance officer:-
1. A contended in his Skeleton Argument that the entry clearance officer was wrong about the hotel booking. As a careful examination of the documents shows, there might have been a mistake of fact. The email of 5 February 2023 confirming the booking refers to a booking for two adults and two children (4 and 6 years old) but further down, under "special requests", as inputted by A, it says, "(W) E are two adults and three children", and further down it says that only one child under five can stay for free. This is said to show that the booking was not incomplete, and that the entrance clearance officer was wrong to say that this damaged A's credibility. In his Skeleton Argument for the hearing, and at the hearing, Mr Smith on behalf of the Secretary of State accepted that this appeared to show that the entry clearance officer had made a mistake about the hotel booking.
2. The entry clearance officer is said to have been wrong to have taken issue with the proportionality of the cost of the trip in relation to A's means, because the entry clearance officer should have factored A's savings into that calculation and did not do so.
3. A argued that the documents he submitted, listed in paragraph 57 of his Skeleton Argument were
"Arguably more than sufficient to show what his financial circumstances were. It was irrational to require more documents, such as invoices and receipts, especially given the entry clearance officer's recognition that Bangladesh is a largely cash based society."
- In the order calling this appeal in for an oral hearing, I refused permission to appeal in relation to the third aspect of the composite ground of appeal, so I need to say no more about that today. My provisional view in relation to the other two aspects of the composite ground of appeal was that if there were errors in the approach of the entry clearance officer, those errors were immaterial.
- In his oral argument today, Mr Fazli made a number of points about the hotel booking. They included that it was apparent from the entry clearance officer's approach that hits error about the hotel booking had materially undermined the credibility of the applicant's application. In addition, he argued that the extra cost which would have been involved, had a fifth booking been charged for, was material to the entry clearance officer's assessment of the total cost of the trip in relation to A's resources, and that that is now shown to be a baseless concern. Overall, the mistake about the hotel booking was a material component of the entry clearance officer's overall conclusion about the credibility of the application.
- On the second of the available grounds, Mr Fazli, contrary to the impression I had derived from the grounds of appeal and the original appeal Skeleton Argument, accepted that A was not, in fact, relying on a separate pot of savings in support of his application, but was referring, in fact, to the total amount at any one time in his current account. He floated a point that the Secretary of State had not followed the relevant guidance, because the Secretary of State had taken into account the money which was available in the account at the date of the decision, rather than the money which was available in the account at the date of the application. This seems to be an immaterial difference between the two. A difference between a proportion of 70 or 72 per cent and, in any event, this was not either, as far as I could tell, a ground for judicial review or part of the grounds of appeal to this court.
- If I take the two points in turn, it seems to me whether or not the entry clearance officer was right about the date, the entry clearance officer was correct that the planned spending was about 72 per cent of the closing balance in A's personal account. It was either 72 per cent or 70 per cent. A has claimed, it seems, in application 2, to have significant savings, but did not provide any evidence to support that assertion, such as the statement in relation to a savings account. As I have just explained, Mr Fazli accepts that there was no separate pot of savings.
- It therefore seems to me that on the material supplied to the entry clearance officer, the entry clearance officer was not arguably wrong in making the point he made about the proportion between the amount of money available to A for the trip, and the amount of money as disclosed in the closing balance on his current account. I remain of the view, which I expressed in my written reasons for calling in this application, that if there was some error in relation to this point by the entry clearance officer, it is not arguably a material error, as it is highly likely that the outcome for the Appellant would not have been significantly different without that error.
- I turn now to the argument about the hotel booking. As I have said, Mr Smith on behalf of the respondent Secretary of State accepts that it appears the entry clearance officer did make or might have made a mistake about this point. I remain of the view which I expressed in my reasons for calling this in for an oral hearing. That view is that the mistake about the hotel booking is one of only several points which were made by the entry clearance officer in the decision and, again, that error is immaterial.
- I bear in mind that the decision which is subject to this challenge is the last in a long line of decisions which I have summarised at some length already, in which a series of criticisms were made of the application, and new applications and submissions were made in an attempt to remedy the deficiencies in the previous applications to which the Secretary of State had drawn attention.
- My overall view is that it is not arguable with a realistic prospect of success that the entry clearance officer erred in law in reaching the decision which he or she did reach at the end of this sequence of decision-making on the basis of the material which had been supplied by A. For those reasons, I refuse this application for permission to appeal. I do not consider there is any compelling reason for giving permission to appeal.