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Evidential flexibility for Tier 1 entrepreneurs – UT judgments

Three judgements of the Upper Tribunal address the complicated requirements of the immigration rules in relation to Tier 1 Entrepreneurs. The three cases were heard by the President of the Upper Tribunal, McCloskey J, and the appellants were represented by Ian MacDonald QC.

The first case, Fayyaz [2014] UKUT00296, deals with an appeal against refusal of an in-country application for Tier 1 Entrepreneur visa on the basis of insufficiency of detail in the letter from the financial institution holding funds for the third party sponsor. In particular, the letter from the bank appears to have omitted the details of the third party sponsor account holder, such as their full postal address, telephone number and email address. Although the same details were provided in a separate letter from the sponsor, the tribunal found that the exact requirements of the immigration rules were not met. The tribunal rejected the appellant’s argument that requirement was “absurd” in the light of the information amply available from alternative sources. The appeal failed.

Related case of Durani (Entrepreneurs: bank letters, evidential flexibility) [2014] UKUT00295 was heard at the same proceedings but decided in a separate determination. It addresses the mere existence of “evidential flexibility policy” and confirmed that all requirements are now contained in the Immigration Rules. There is no additional duty on the Home Office to exercise flexibility and request additional documents for the sake of saving the application.

The third case, Akhter (paragraph 245AA – wrong format) [2014] UKUT 000297 was an appeal against the decision of the First-tier tribunal setting aside the refusal of the application by the Home Office. This appeal, unlike its two counterparts, was allowed. The fact of this case were similar to the other two appeals: the letter from the bank confirming availability of funds held by a third party sponsor lacked some of the information prescribed by the Immigration Rules. In this case it was the applicant’s details that were missing from the letter. In line with the decisions in the two parallel appeals, the tribunal found that failure to provide full and precise information as required by the rules defeated the application.

The judgements highlight extreme complexity of the current rules and the need for minute attention to detail when preparing the applications.

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