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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HK (Bangladesh) v Secretary of State for the Home Department [2015] EWCA Civ 963 (23 July 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/963.html Cite as: [2015] EWCA Civ 963

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		23rd July 2015

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal.
2. The appellants are a married couple who applied for leave to remain under Tier 1, entrepreneur, of the points-based system. The application was made on 28th November 2012 and was refused by a decision dated 7th May 2013. The appellants appealed that adverse decision and the matter came before a judge of the First-tier Tribunal.
3. In a very short determination that judge allowed the appeal but only to the extent that the applications remained outstanding before the Secretary of State. The intention of the judge was that the Secretary of State should afford the applicants the opportunity to adduce missing evidence, the Secretary of State having not afforded them that opportunity any earlier.
4. But in substance the judge of the First-tier Tribunal did find that the application, which was made under paragraph 245DD and Appendix A of the Immigration Rules, was appropriately refused on the grounds of deficiencies in the documentary evidence in support. As summarised when the matter got to the Upper Tribunal, details of the entrepreneurial team members and relevant telephone numbers were missing from the contract that the appellants had relied upon, the services described in the contract were not client specific and the applicants had not provided the relevant documentation evidencing that their business was registered in the United Kingdom for the purposes of Her Majesty's Revenue & Customs.
5. The Secretary of State sought permission to appeal that decision, permission was granted and the matter came before Upper Tribunal Judge Pinkerton in the Upper Tribunal, who made his determination on 2nd June 2014. He pointed out that the First-tier Tribunal judge, through no fault of his own, had failed to take into account a decision of this court in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, which was to the effect that the Secretary of State is not required to give an applicant the opportunity to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration. That was no fault of the First-tier Tribunal judge because that decision of this court was published at more or less the same time as the First-tier Tribunal judge promulgated his decision.
6. Accordingly the Upper Tribunal judge allowed the appeal of the Secretary of State against that determination and he said at paragraph 10:

i. "... I find that it cannot be said that addressing the omission or error would necessarily have lead or even have been likely to lead to a grant of leave. The complaint about the contract was not only that it did not contain the entrepreneurial team members' names and the other party's landline contact number, but the services described in the contract did not appear to be client specific. That reason for refusal does not seem to be addressed by anybody. If the contract needed to be varied there would have to be agreement between the parties to that contract to enable variation to be made. That is not a minor matter capable of remedy as contemplated under the Rules and Guidance."

7. Perhaps in fairness I will go on read paragraph 11:

i. "As to the blank copy of a tax return form, that may well have been a mistake but not necessarily one that would be known to be a mistake at the time of receipt of the allegation. It is not apparent to me that there would be sufficient reason to believe that form CT41G had in fact been completed, that it showed that a date of registration existed or that there was in existence a completed tax return document that included the tax reference for company. As per paragraph 92 of Rodriguez the evidential flexibility process instruction is demonstrably not designed to give an applicant the opportunity first to remedy or defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration. As is stated earlier in the paragraph it is to be noted that although there is no limit to the amount of information that can be requested from the applicant, it is immediately qualified by the instruction that requests for information should not be speculative and - as subsequently reiterated - there must be sufficient reasons to believe any requested evidence existed."

8. I need say no more about the application of the decision in Rodriguez because on this renewed application for permission to appeal, permission having been refused on the papers by Gloster LJ on 23rd January 2015, Mr Iqbal, for the applicants, does not attempt to argue that the Upper Tribunal judge erred in his approach so far as I have so far indicated it to have been. He accepts that the way in which he now seeks to put the matter on behalf of the applicants was not in any way foreshadowed before either the First-tier Tribunal or the Upper Tribunal and the argument that he has put forward, which is very helpfully summarised in his written statement, filed in accordance with the Practice Direction, at paragraph 4, 14 and A2 is as follows. He points out that the respondent's refusal is based on the following points: (i) that the appellant's entrepreneurial team member's name does not appear on the contract; (ii) the appellant's customer land line telephone number does not appear on the contract; (iii) the services described in the contract are not client specific and (iv) the appellant did not provide a copy of form CT41G or a completed Tax Return document showing the tax reference for the company.
9. His submission to me today is that three of those matters, that is to say the first, the third and the fourth are simply not required by the rules. He points to paragraph 41 SDC4 of Appendix A which refers in the documentary requirements to one or more contracts showing trading. If a contract is not an original the applicant must sign each page of the contract. The contract must show (i) the applicant's name and the name of the business (ii) the services provided by the applicant's business.
10. Pausing there, it seems to me, with great respect to Mr Iqbal, that that submission overlooks the circumstance that the purpose of the documents is to show that there is active trading taking place and, as I would understand the determination of the Secretary of State, what is being said on her behalf is that documents which lack the particular features to which I have just referred cannot be said to demonstrate that trading is taking place, given the omissions in the information which they convey.
11. Mr Iqbal recognises that, so far as concerns the customer's land line telephone number, that is something that is required, that is required I think by sub-paragraph 41 SDC4(3) of the rules which refers to "the name of the other party or parties involved in the contract and their contact details including their full address, postal code, land line phone number and any e-mail address". But he submits that a failure to include the lane line phone number can properly be regarded as de minimis and he asks rhetorically: what would the position be if the relevant customer has no land line but rather uses a mobile telephone number? The answer to that rhetorical question, of course, is that the relevant documents could include information to that effect, stating in terms that there is no land line phone number and providing the alternative mobile phone number.
12. The difficulty however, which Mr Iqbal faces in all this, is as he very fairly and squarely recognised, that this is an application for permission to bring a second appeal, which means that he must demonstrate that there is here involved some important point of principle or some point of practice, which is of importance, or that there is some other reason which renders it appropriate for there to be a second appeal. In circumstances where, as he rightly recognises, the case is sought to be argued in a manner completely different from that which it was argued before the lower tribunals, that is a very ambitious task.
13. As I pointed out to Mr Iqbal, the Upper Tribunal judge, both at paragraph 10 of his determination and when refusing permission to appeal to this court, gave it as his view that the omissions were not minor. Mr Iqbal suggests that that should be understood in the context of the argument addressed to the judge, which did not include the argument to the effect that three of the pieces of information were not properly required by the rules. As I have indicated, I am not, for my part, satisfied that Mr Iqbal is necessarily right about that. But the difficulty he faces remains that the evaluation whether a matter of this sort is minor or de minimis is essentially one of fact which is to be carried out by the tribunal entrusted with decisions of fact. Indeed I note that in paragraph 23 of his very helpful written statement Mr Iqbal himself points out that "it must be remembered that the application of de minimis is highly fact sensitive and depends strictly on the context". I entirely agree with Mr Iqbal about that. But when what we are concerned with is a highly fact sensitive inquiry, it follows, I am afraid, that that is pre-eminently a matter which must be left to the fact finding tribunals and it is not an area in which this court will intervene.
14. I appreciate, of course, that the point was not put in that way before the lower tribunals but that does not mean that it can now be raised here and elevated to a point of principle.
15. For all those reasons therefore, attractively and helpfully though Mr Iqbal has put the application this morning, I am in no doubt that permission to appeal must be refused.