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The Court of Appeal considered submissions regarding third party funding and the specified documentary requirements contained in paragraph 41-SD, in Appendix A of the Immigration Rules, applicable to Tier 1 (Entrepreneur) applicants.
Paragraph 41-SD requires the appropriate amount to be shown as;
(a) cash money,
(b) that the applicant is permitted to use to invest in a business in the UK, and
(c) that money is either held in a UK regulated financial institution or is transferable to the UK.
At [12], the Court confirmed that although the requirements only refer directly finances held by “applicants”, compliance was still required where some or all of the relevant funds was being provided by third parties.
The First Appellant submitted that in the case of third parties, the aim of the Rules was to identify that the third party had the requisite funds, and it was sufficient, through a “purposive” interpretation, to show that the (third party) account holder could show the appropriate amount of money under the Rules.
The Court rejected this approach. Firstly, the Rules were clearly aimed at establishing the availability of requisite funds to the applicant rather than just the third party purporting to offer them (see [14]). Secondly, the Court cited with approval the ratios regarding literal interpretation in the linked UT decisions in Fayyaz (Entrepreneurs) [2014] UKUT 296 (IAC), Durrani (Enterpreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC), and Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC) (see [16]-[18]). The words mean what they say, and they achieve the underlying purpose of paragraph 41 in Appendix A to the Rules.
The Second Appellant went on to submit, however, that the financial institutions providing evidence of third party funds would not provide such documentary evidence that included the applicant’s permission to use the funds to invest as required, and thus a “purposive interpretation” necessitates that such documents need only show that the funds are available to the (third party) account holder, and the amount of money available to that account holder. However, this submission was dismissed at [26] on the ground that there had not been any evidence to show that the relevant financial institution would not, or could not, provide the documentary evidence in the format required.