27 Feb 2017, 40 mins ago

This was the finding in a recent Court of Appeal decision which we consider important in considering refusal decision letters from the Home Office. 

It is the recent case of SI (India) v Secretary of State for the Home Department [2016] ECWA Civ 1255 heard before Rafferty LJ and Sir Ernest Ryder. This case concerned an Indian national whose application for leave to remain as a Tier 1 (Post Study Work) Migrant was refused for failing to satisfy the maintenance requirement provided for in Appendix C of the Immigration Rules (‘Rules’). 

The appellant submitted his application on 5 April 2012, which was refused on 1 October 2012. The appeal was originally listed on 13 December 2012. Five days before the appeal, the appellant submitted evidence of his parents’ bank account and their affidavits confirming their financial support for him. Three days before the hearing, on 10 December 2012, after reviewing the evidence available, the respondent withdrew its refusal decision of 1 October 2012. The respondent then made a fresh decision maintaining the refusal on 5 November 2013, which was the subject of this appeal. The second refusal decision letter stated, “parental sponsorship…is not permitted…in addition the evidence you submitted post-dated the date you made your application for leave i.e. on 5 April 2012 – and is, therefore unacceptable…”

This reasoning was interpreted to mean that the application was rejected because the appellant did not submit the additional maintenance evidence at the time application was made. The respondent argued this was not the intended meaning of the refusal. 

The maintenance requirement in the Rules required that the appellant had at the date of application, under his control, at least £800 for a consecutive 90-day period. For this purpose, the appellant submitted his Lloyds Bank statements which were 3 days short of the required 90 day period and his balance had fallen below the £800. Prior to the appeal, the appellant submitted further bank statements including from his mother’s account together with a letter from the bank in which he was described as a “nominee” on her account as well as affidavits from his parents. He claimed that he could rely on his mother’s funds to account for the shortfall that was missing from his account, which had a sufficient credit of above £800. The appellant argued that in India a “nominee” has access to the funds on demand. The respondent argued that those were not funds in control of the appellant.

Nonetheless, the Court of Appeal was not inclined to make findings of fact in relation to these particulars simply by virtue of the manifestly flawed refusal letter of the respondent, which contained a “decision confined to two sentences” out of “five pages of fairly dense typescript which recite the standard relevant paragraphs” of the Rules. The Court of Appeal criticised the respondent in failing to provide any reasoning for its reliance on the policy that parental sponsorship is not permitted for Tier 1 applications and for failing to apply the policy to the evidence provided. The Court stated, “the applicant and the Tribunal are left to navigate to their own conclusions about whether the evidence submitted is rejected and if so why.”  The Court went on to say that the refusal letter “lacked clarity and reasoning” which “cannot withstand scrutiny by this court.

In allowing the appeal, the Court of Appeal emphasized the requirement that: “Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant’s evidence has been rejected and c) the reasons for coming to the conclusion reached.”     

In refusing an immigration application, the onus is on the Home Office to clearly articulate their reasons in refusing a person’s points based system immigration application based on the evidence submitted. If not, they leave themselves exposed to challenge. Should you wish to make an enquiry about your legal right to challenge a refusal, please do not hesitate to contact Gherson.