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MORE evidential flexibility cases

MORE evidential flexibility cases

Having been overruled by the Court of Appeal in the case of Rodriguez [2014] EWCA Civ 2 (FM post here), Mr Justice McCloskey, President of the Immigration and Asylum Chamber of the Upper Tribunal, has returned to the vexed issue of ‘evidential flexibility’ in a trio of cases:

Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC)

Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC)

Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC)

This is an issue that the Supreme Court will be examining in the coming months, permission having been granted on 19 May 2014 in Rodriguez (now called Mandalia). These latest Upper Tribunal cases are not, therefore, the last word we will see on the subject.

The headnotes read as follows:

Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC):

(1)   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, 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. There is no 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. Accordingly, there is no substance in the argument that the relevant requirements contained in paragraph 41-SD(a)(i) produce an absurd result and must, therefore, be interpreted in some other manner.

(2)   The question of whether a policy exists is one of fact. There is no evidence that some policy on evidential flexibility, independent and freestanding of paragraph 245AA, survived the introduction of that paragraph in the immigration rules.

The finding that there is no evidential flexibility policy is a bit puzzling. You can read it here on the gov.uk website (version 6.0EXT, valid from 28 March 2014).

Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC):

A bank letter, which does not specify the postal address, landline telephone number and email address of the account holders is not thereby “in the wrong format” for the purposes of paragraph 245AA of the immigration rules (documents not submitted with applications).

Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC):

The words “provided to” in paragraph 41-SD(a)(i) (9) of Appendix A (Attributes for Tier 1 (Entrepreneur) Migrants) have the same meaning as “available to.” Whilst the Rule has now been amended to this effect, the previous wording of the Rule did not give rise to any absurdity or doubt in construction.

Mandalia will be interesting in the Supreme Court. The Court of Appeal has made a few adverse comments about the Points Based System in the past, but I suspect few judges outside the First-tier Tribunal really understand how impossible and impenetrable the modern rules are, particularly the non-sequential versions. For rules to be so complex that specialist lawyers barely understand them is hardly helpful to the rule of law.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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