R v. Immigration Appeal Tribunal, Ex parte Mohammed Shayequr Rahman

R v IMMIGRATION APPEAL TRIBUNAL ex parte MOHAMMED SHAYEQUR RAHMAN

COURT OF APPEAL (CIVIL DIVISION)

[1987] Imm AR 313

Hearing Date: 2 February 1987

2 February 1987

Index Terms:

Businessman -- application for admission in that capacity following inheritance of businesses already established in the United Kingdom -- intention to continue the businesses -- whether the capital requirement of the relevant rule was satisfied by the capital already in the businesses, of which by inheritance the applicant was the beneficial owner. HC 394 para 35.

Immigration rules -- interpretation -- whether the obligation to look at the rules 'in the round' can allow a specific requirement in a rule to be ignored where there is no ambiguity in the language.

Held:

The respondent was a citizen of Bangladesh whose father, settled in the United Kingdom, had established a number of successful businesses. On the death of his father the respondent inherited the major interest in those businesses. He intended actively to manage them. He applied for entry as a businessman. He could not satisfy the capital requirement of the relevant rule unless the capital which could be realised on the sale of the businesses was deemed to be capital he would be bringing into the businesses. He was refused leave to enter. His appeals before an adjudicator and the Tribunal were dismissed. On application for judicial review the decision of the Tribunal was quashed: the Court held that looking at the rules 'in the round' the capital that could be realised on the sale of the businesses should be regarded as satisfying the capital requirement of the rule. On appeal by the Tribunal, the judgment in Queen's Bench was, by a majority, reversed. Held: 1 Although following Alexander, immigration rules were to be given a commonsense construction, in looking at the rules 'in the round', following ex parte Peikazadi, it was nevertheless not proper to disregard a specific requirement of a rule, when the language was plain and unambiguous. 2 It followed, on the plain language of the relevant rule, that capital already in the business, which might be realised on sale, was not capital which the respondent 'will be bringing . . . of his own to put into the business.'

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Joseph [1977] Imm AR 70. R v Immigration Appeal Tribunal ex parte Peikazadi [1979-80] Imm AR 191. Alexander v Immigration Appeal Tribunal [1982] Imm AR 50: [1982] 1 WLR 1076. R v Immigration Appeal Tribunal ex parte Mohammed Shayequr Rahman (QBD) [1985] Imm AR 222. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352: [1986] 1 WLR 910.

Counsel:

D Pannick for the appellant; KS Nathan for the respondent PANEL: Parker, Bingham LJJ, Sir Denys Buckley

Judgment One:

PARKER LJ: This appeal raises an important point on the construction of the Immigration Rules in force from 1 March 1980 to 1 January 1983 (1980 HC 394). Although those Rules have been replaced as from the latter date by new rules (1982 HC 66) the point remains of importance for save as respects the raising of the qualifying figure hereafter mentioned from @100,000 to @150,000 there has been no change in the relevant paragraphs. Those paragraphs are paragraphs 35 and 36. It is necessary to set them out in full and it is also convenient to set out paragraphs 37 and 38. Businessmen and self-employed persons 35 A passenger seeking admission for the purpose of establishing himself in the United Kingdom in business or in self-employment, whether on his own account or in partnership, must hold a current entry clearance issued for that purpose. A passenger who has obtained such an entry clearance should be admitted, subject to paragraph 13, for a period of not exceeding 12 months with a condition restricting his freedom to take employment. For an applicant to obtain an entry clearance for this purpose he will need to satisfy the requirements of either paragraph 36 or paragraph 37. In addition he will need to show that he will be bringing money of his own to put into the business; that his level of financial investment will be proportional to his interest in the business; that he will be able to bear his share of the liabilities; that he will be occupied full-time in the running of the business; and that there is a genuine need for his services and investment. In no case should the amount of money to be invested by the applicant be less than @100,000 and evidence that this amount or more is under his control and disposable in the United Kingdom must be produced. 36 Where the applicant intends to take over, or join as a partner, an existing business, he will need, in addition to meeting the requirements of the preceding paragraph, to show that his share of the profits will be sufficient to maintain and accommodate him and his dependants. Audited accounts of the business for previous years must be produced to the entry clearance officer in order to establish the precise financial position, together with a written statement of the terms on which he is to enter or take over the business. There must be evidence to show that his services and investment will create new, paid, full-time employment in the business for persons already settled here. An entry clearance is to be refused if an applicant cannot satisfy all the relevant requirements of this or the preceding paragraph or where it appears that the proposed partnership or directosrhip amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment of any kind or by recourse to public funds. 37 If the applicant wishes to establish a new business in the United Kingdom on his own account or to be self-employed he will need to meet the requirements of paragraph 35 and satisfy the entry clearance officer that he will be bringing into the country sufficient funds of his own to establish an enterprise that can realistically be expected to maintain and accommodate him and any dependants without recourse to employment of any kind (other than his self-employment) or to public funds. He will need to show in addition that the business will provide new, paid, full-time employment in the business for persons already settled here. An entry clearance is to be refused if an applicant cannot satisfy all the requirements of this paragraph and of paragraph 35. Persons of independent means 38 A passenger seeking entry as a person of independent means must hold a current entry clearance issued to him for that purpose. He should, subject to paragraph 13, be admitted for an initial period of up to 12 months with a prohibition on the taking of employment. For an applicant to obtain entry clearance he will need to show that he has, under his control and disposable in the United Kingdom, a sum not less than @100,000 or income of not less than @10,000 a year. He must also be able and willing to maintain himself and support and accommodate any dependants indefinitely in the United Kingdom without working, with no assistance from any other persons and without recourse to public funds. An entry clearance is not, however, to be granted solely because these financial conditions are met. In addition the applicant must demonstrate a close connection with the United Kingdom (including for example the presence of close relatives here or periods of previous residence), or that his admission would be in the general interests of the United Kingdom. Mr Rahman, the respondent, is a citizen of Bangladesh. He was admitted to this country as a student in 1975 and remained here lawfully until November 1978 when, permission to remain having been refused, he returned to Bangladesh. In 1980 he applied for an entry clearance to enter this country again and an appointment was made for him to see an entry clearance officer in Bangladesh on 2 October 1980. His purpose was to help run a business which his father had built up in the North of England. That business comprised the ownership and operation of three restaurants and two take-away food shops. In September 1980 the father flew to Bangladesh in order to assist his son with the application but unfortunately, on 13 September, a few days after arrival, the father died. Apart from a 25% share in one of the restaurants which was left to a Mr Miah, Mr Rahman was the sole beneficiary under the father's will. As a consequence of his father's death and his inheritance the basis of Mr Rahman's application for entry clearance changed. So far as now material it was advanced on three grounds: 1 To enter as a businessman or self-employed person under paragraphs 35 and 36 of the then current Immigration Rules (HC 394). 2 To enter as a person of independent means under paragraph 38 of HC 394. 3 To enter as a visitor under paragraph 17 of HC 394. For some unexplained reason no decision on the applications was reached until 11 February 1982. On that date the ECO notified Mr Rahman as follows: ". . . You have applied for an entry certificate to come to the United Kingdom as a self-employed person or businessman however the amount of money you would be investing would be less than @100,000. You have also applied to be considered as a person of independent means but you do not have under your control a sum not less than @100,000 or income of not less than @10,000 a year. I therefore refuse your application." This notification did not cover the application to enter as a visitor but this, too, was refused, albeit not until 3 September 1982. Mr Rahman, as he was entitled to do, appealed to an adjudicator against both refusals. His appeal was dismissed on 9 August 1983. Before the adjudicator Mr Rahman did not press his application to enter as a businessman or self-employed person. As to this the adjudicator, in his written reasons said:

"On behalf of the appellant Mr Islam of Counsel did not press a claim on behalf of the appellant that he was entitled to be admitted to the United Kingdom in order to continue the business of restaurateur formerly carried on by his father because the requirements of rules 35 and 36 of House of Commons paper 394 were not satisfied. I consider that the circumstances of the appellant do not satisfy those requirements. The appellant is not introducing any new capital into the business nor has it been shown that the appellant's experience is such as to ensure that his services and investment will create new paid full time employment for persons already settled in the United Kingdom."

The adjudicator then dealt with the other two grounds of Mr Rahman's application and rejected both. Mr Rahman further appealed to the Immigration Appeal Tribunal which is the present appellant. Before the Tribunal Mr Rahman revived his application to enter as a business man, as he was entitled to do. He also pursued the other two grounds. He failed on the two main grounds but succeeded in his application to enter as a visitor. No point now arises with regard to the matter, or as to the rejection of application to enter as a person of independent means. The sole matter now in issue is the application to enter as a businessman. As to this the appellant tribunal in its reasons merely quoted the paragraph from the adjudicator's reasons set out above and then said:

". . . we consider that these findings of fact by the adjudicator were adequately supported by the evidence before him."

Mr Rahman then applied to the High Court for judicial review and on 7 November 1985 Woolf J (as he then was) quashed the Tribunal's decision and ordered that the matter be remitted to it for reconsideration in the light of the judgment. The tribunal now appeals to this court. One point only falls for determination, namely, whether the provisions in paragraph 35 of HC 394 that the applicant must show "that he will be bringing money of his own to put into the business" and that "the amount of money to be invested by the applicant" must be not less that @100,000 requires that the applicant bring that amount of new capital into a business which he owns by inheritance or whether it is sufficient if the value of the business so owned is of that amount. At the present time it is uncertain whether the value of Mr Rahman's business is of the required amount but it is to be assumed for present purposes that it may be and that if the matter is remitted to the Tribunal he may succeed in establishing that it is and that all the other requirements of paragraphs 35 and 36 of HC 394 may be fulfilled. It was contended for the appellant before the learned judge and before us that the rules plainly require that the applicant must bring new capital into the business and is not entitled to credit for money already in the business. The learned judge accepted that if the rules were read literally there was no doubt that this contention was correct but that if the literal interpretation were applied it led to "an astonishingly unattractive result". He then said: ". . . It would mean that in this case Mr Rahman would not be able to come into this country as a businessman if he allows the businesses to continue. But assuming that he meets the other qualifications, he could meet the requirements of the rules by selling those businesses, having the capital sum which that would produce, and then using that money as the investment which he would offer to put into either new businesses or into existing businesses which he wished to take over. If he wished to put the money into a new business under rule 37 he would, of course, not only have to sell the existing businesses, but take the money out of the country and then be prepared to bring it back into the country. I have been told of no policy reasons why it should have been the desire of the Home Secretary to create a position where a person who is fortunate enough, as Mr Rahman was, to inherit businesses should be required to sell those businesses and to go through the sort of procedure to which I have just referred. The rules are clearly designed to enable persons who can make a commercial contribution to the welfare of this country to enter this country for that purpose. If find it difficult to conceive how it can be in the interests of the welfare of the commerce of this country that the businesses which have already been established should be sold and disrupted if a person desires to enter this country.

"I therefore, having regard to this, have to consider what was the intention which is manifested by the rules read, as they should be read, in the round."

The reference to reading the rules "in the round" was to a passage in the judgment of Donaldson LJ (as he then was) in R v Immigration Appeal Tribunal ex parte Peikazadi [1979-80] Imm AR 191 at 192, where he said, in relation to paragraph 19 of HC 82 (the predecessor of HC 394 paragraphs 35-37): "The proper approach to this paragraph was considered by this court in the decision of R v The Immigration Appeal Tribunal, ex parte Joseph and they reached the not surprising conclusion when one looks at the words of para 19 that it had to be given a broad common sense construction or, as they put it, the considerations therein set out had to be looked at 'in the round'. But for the fact that the Immigration Appeal Tribunal had taken the contrary view, I should have thought that was blindingly obvious when one finds stated in terms in the paragraph that 'any such application is to be considered on merits' and that 'permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share . . . They are general criteria. The intention is, of course, that the applicant shall be the controller of the business; that the applicant shall not front for somebody else; that he shall have a stake in the business so that he has an incentive to make certain that the business is viable. The Secretary of State wants to be satisfied indeed that the business will be viable and it is not being run for the benefit of others who may suddenly wind the business up or withdraw the assets, because in the end para 19 of HC 82 is not directed so much to the welfare of the immigrant seeking to set up a business as to the welfare of this country. Obviously the thing has to be looked at 'in the round'". It is to be observed that the rule under consideration in that case did not, as do the present rules, set out specific criteria. The learned judge adopted that approach and said that on that approach it was his view that the rules should be applied in a manner 'which involves them covering not only a situation where a person has not yet put his money into a business but also a situation where money has been put into the business by the applicant.' There must here, I think, be an error of transcription but the sense is clear enough. For the appellant it is contended that the learned judge erred. Ex parte Peikazadi is no warrant for departing from the plain and ordinary meanding of the words used. The true approach is that stated by Lord Roskill in R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1076 at p 1080 where he said:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language employed."

I agree, although with respect to Lord Roskill, I would have thought that this was also a sound rule of construction for statutes. For the respondents, Mr Nathan contends that Ex parte Peikazadi fully justified the view taken by the learned judge. He also relied on the following passage in the speech of Lord Bridge of Harwich in R v Immigration Appeal Tribunal ex parte Singh [1986] 1 WLR 910 at pp 917/918 when he said:

"The rules do not purport to enact a precise code having statutory force. They are discursive in style, in part merely explanatory and, on their face, frequently offer no more than broad guidance as to how discretion is to be exercised in differnt typical situations. In so far as they lay down principles to be applied, they generally do so in loose and imprecise terms."

These observations cannot, however, in my view, avail the respondent Paragraph 67 of HC 394 specifically states:

"A passenger who does not qualify for admission under the foregoing provisions of the rules is to be refused leave to enter."

Rules 35 and 36, unlike their predecessor, contain very specific requirements. The language appears to me to be clear. Paragraph 35 requires the applicant to show: 1 That he will be bringing money of his own to put into the business. 2 That the level of financial investment will be proportional to his interest. 3 That there is a genuine need for his investment. 4 That the amount to be invested is to be not less than @100,000. To hold that these words cover a case where the applicant has succeeded to an existing business and intends to invest nothing of his own in it is, in my view, impossible unless there is to be found elsewhere in the rules a plain purpose that refraining from taking money out of the business is to be regarded as putting money into the business. I can find no such purpose. Indeed a powerful indication to the contrary appears in paragraph 36 which requires an applicant to show that 'his services and investment will create new paid, full time employment for persons already settled here." Suppose that Mr Rahman's father had bequeathed to him the business and @50,000 and he had used the @50,000 to increase the accommodation at the three restaurants. Has he, as a matter of broad common sense or sensible construction, put into the business which he has inherited @50,000 or @50,000 plus the value of the business? The answer must, in my view, be "@50,000" only. I fully accept that if this interpretation is adopted there may appear to be unattractive results but not necessarily so. The business which Mr Rahman has inherited has, for example, continued to be run without his presence for over six years and he does not need to sell it. If he chooses to sell it as a going concern and it is worth @100,000 he will then have @100,000 which he can invest in a new business and create new jobs, but assuming for the moment that he has no other resources, the only way in which he can ever have money of his own to put into any business is by selling the existing business in which his father has invested money. Although a degree of latitude greater than in the case of a statute may be applied in the construction of the rules, that latitude does not extend to departing from the plain, ordinary natural meaning of the language. In my view that is, with all respect, what the learned judge did and in so doing he erred in law. I would allow the appeal and restore the decision of the tribunal.

Judgment Two:

BINGHAM LJ: I agree. In ruling upon the applicant's application the entry clearance officer was bound to follow the applicalbe rules made by the Secretary of State under section 3(2) of the Immigration Act 1971. The adjudicator, on appeal to him, was similarly bound to allow the appeal if he considered that the decision appealed against was not in accordance with the law or with such rules. It is accepted that the rules which apply here are HC 394, printed by order of the House of Commons on 20 February 1980. It is to these rules, read in a fair, unstrained and common sense way, that one must look for a statement of the applicant's rights. Paragraph 67 of these rules provides: "A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter". The general rule is, therefore, one of exclusion, unless an applicant falls within a provision entitling him to enter. The applicant here relies on paragraphs 35 and 36. Paragraph 36 applies to the case where an applicant "intends to take over, or join as a partner, an existing business . . . " That is complemented by the case covered by paragraph 37 where an applicant "wishes to establish a new business in the United Kingdom . . ." Paragraph 37 is not relied on here, but the rules make plain that whether an applicant relies on paragraph 36 or paragraph 37 he must, in addition to meeting the specific requirements of one or other of those paragraphs, also meet the requirements of paragraph 35, which governs both the paragraphs which follow it. Paragraph 35 provides:

" . . . For an applicant to obtain an entry clearance for this purpose he will need to satisfy the requirements of either paragraph 36 or paragraph 37. In addition he will need to show that he will be bringing money of his own to put into the business, that [etc] . . ."

Paragraph 36 begins:

"Where the applicant intends to take over, or join as a partner, an existing business, he will need, in addition to meeting the requirements of the preceding paragraph to show . . ."

Paragraph 36 ends:

"An entry clearance is to be refused if an applicant cannot satisfy all the relevant requirements of this or the preceding paragraph . . ."

but it seems to me plain that an applicant must satisfy the requirements of both paragraphs, not one or other, and the contrary has not been suggested. The crucial question is whether the applicant can properly be held to be bringing money of his own to put into a business when he has inherited a business which he wishes to retain but into which he proposes to inject no additional capital. The learned judge held that he could. In reaching that conclusion the judge accepted that the applicant could not, on a literal reading of the rules succeed. But, pointing out that the rules are not statutes or statutory instruments, and being understandably struck by the "astonishingly unattractive result" to which a literal construction would give rise, he adopted a more liberal approach to construction and held that the rules "should be applied in a manner which involves them covering not only a situation where a person has not yet put his money into a business, but also a situation where money has been put into the business by the applicant." I have every sympathy with the judge's general view. The applicant has observed the immigration laws. It would seem, in a general way, fair that he should be permitted to manage the business he has inherited, as his father wished. But the task of the entry clearance officer, the adjudicator, the Immigration Appeal Tribunal, the Divisional Court and ourselves is not to achieve what may, in the abstract, appear to be justice but to apply the rules. No doubt the approach to rules such as these is freer than to a statute or a statutory instrument, because the habits and conventions of parliamentary draftsmanship are likely to have been less rigorously observed, but if, even in rules like these, the words used are specific and clear there is no choice but to give effect to their natural and ordinary meaning. The requirement in paragraph 35 than an applicant should bring money of his own to put into a business can in my view refer only to either the injection of new money into an existing business (paragraph 36) or the provision of money to form the capital of a new business (paragraph 37). That a prospective investment is contemplated is, I think, shown by the requirements that "he will be bringing money", that "the level of financial investment will be proportional" and that "the amount of money to be invested" should reach a certain figure (my emphasis). The requirement in paragraph 36 that there should be "evidence to show that his services and investment will create new, paid full-time employment in the business for persons already settled here" also suggests that there is to be an expansion of the existing business as a result of the injection of new money and not merely a continuation of the existing business. Paragraph 37 goes even further, in requiring an applicant to satisfy the entry clearance officer that "he will be bringing into the country sufficient funds of his own to establish an enterprise . . ." This is a step beyond paragraph 36, which admittedly does not require that the funds to be injected should be outside the country, but it strengthens still further my strong impression that paragraphs 35 to 37 require an applicant to sink in a United Kingdom business new money not already available to such business at the time of application. I do not think the applicant can be said to be bringing money of his own to put into the business when the only "money" he is "bringing" is the already existing business. On the applicant's argument, the same assets are, as I think, being illegitimately asked to do double duty, both as the "money" which is to be brought and as the business into which it is to be put. I accordingly conclude that the appeal must be allowed. My reluctance in reaching that conclusion would be greater did it not appear very doubtful whether the applicant could satisfy the @100,000 requirement, a question of fact which the judge referred back to the tribunal.

DISSENT By-1: SIR DENYS BUCKLEY

DISSENT-JDGMT-1:

SIR DENYS BUCKLEY: I have reached a different conclusion. The rules with which we are concerned (HC 394, paragraphs 35, 36 and 37) were made by the Home Secretary under the Immigration Act 1971, section 3(2). That subsection enables the Secretary of State to make rules as to the practice to be followed in the administration of the Act for regulating entry to and stay in the United Kingdom. It has not been suggested that the rules in question were in any respect ultra vires the Secretary of State. They do not have statutory effect. In R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1076, which related to earlier rules made under the same power, Lord Roskill, with whose reasons all the other learned Lords involved agreed, said at p 1080 G:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed."

In R v Immigration Appeal Tribunal ex parte Peikazadi [1979-80] Imm AR 191, which was decided in a QB divisional Court some eighteen months earlier than the House of Lords decision already referred to, Donaldson LJ (as he then was) at p 192 said of Rule 19 of HC 82, which was the rule in force at the relevant time:

"the proper approach to this paragraph was considered by this court in the decision of R v Immigration Appeal Tribunal ex parte Joseph and they reached the not surprising conclusion when one looks at the words of paragraph 29 that it had to be given a broad common sense construction or, as they put it, the considerations therein set out had to be looked at 'in the round.'"

The rules with which we are concerned (which are not in the same terms as the earlier rules in HC 82) fall to be interpreted in accordance with the principle enunciated by Lord Roskill, that is to say, sensibly according to the natural meaning of the language which is employed and, as I think I may add, having regard to the context in which they are found in the body of rules of which they form part. The particular rules in question are to be found in Part III of HC 394, which is headed: "Passengers coming for employment or business or as a persons of independent means" and are grouped under a subheading: "Businessmen and self-employed persons". Rule 35 requires a passenger seeking admission for the purpose of establishing himself in business or in self-employment to secure an entry clearance, for which purpose he must satisfy the requirements of either paragraph 36 or paragraph 37. In addition he must show that he satisfies certain further requirements specified in paragraph 35. Paragraph 36 is applicable where, as in the present case, the pplicant intends to take over an existing business. Paragraph 37 is applicable where he wishes to establish a new business and it is not directly applicable to the present case. The requirements relevant to the present case, being a case to which paragraph 36 applies, can be catalogued as follows. The applicant will need to show: 1 "That he will be bringing money of his own to put into the business": 2 "That his level of financial investment will be proportional to his interest in the business"; 3 "That he will be able to bear his share of the liabilities"; 4 "That he will be occupied full time in the running of the business"; 5 "That there is genuine need for his services and investment"; 6 "That the amount of money to be invested by the applicant" is not less that @100,000; 7 "That this amount or more is under his control and disposable in the United Kingdom"; 8 "That his share of the profits will be sufficient to maintain and accommodate him and his dependants"; 9 "That his services and investment will create new, paid, full-time employment in the business for persons already settled here". Of these requirements, 1-5 appear to me to be directed to establishing that the applicant's intention to establish himself in the United Kingdom by taking over or joining an existing business is genuine and practicable, having regard to his means, and that he will have a proprietorial interest in the business, either as sole proprietor or as a partner; 6 and 7 that he is capable of making and will make a substantial contribution to funding the business; 8 that he and his dependants will not become a burden on the community; and 9 that the applicant's entry into the United Kingdom is likely to confer an economic benefit on existing members of the community. It should be noted that requirement 1 does not, at least expressly, require the money to be brought from the applicant's country of origin or from outside the United Kingdom. In this respect paragraph 35 differs from paragraph 37 of the rules, which requires an applicant, who wishes to establish a new business in the United Kingdom on his own account, to satisfy the entry clearance officer that he will be bringing sufficient funds "into the country". It should also be noted that the only reference to "bringing money . . . to put into the business" is in requirement 1. Elsewhere in paragraphs 35 and 36 the noun "investment" and the verb "invest" are used. In any case to which paragraph 37 applies the applicant must not only satisfy requirement 1 above (which is to be found in paragraph 35) but must also satisfy the additional requirement of paragraph 37 that he must establish that he will be bringing "into the country" -- ie into the United Kingdom -- sufficient funds of his own to establish an enterprise that can realistically be expected to maintain and accommodate him and any dependents without recourse to employment of any kind (other than his self-employment) or public funds. The fact that this requirement is additional to requirement 1 is, I think a clear indication that requirement 1 alone does not require that the money there referred to must be brought from outside the United Kingdom. In my judgment, construing paragraph 35 sensibly and according to the natural meaning of the language there used, an applicant is not required by that paragraph to bring the requisite funds from outside the United Kingdom: it will suffice in an case to which paragraph 36 applies that they are under his control and disposable by him whether in or out of the United Kingdom, provided that he can and will use them in the United Kingdom in acquiring a stake in the business. The applicant must intend to put the money into the business (see requirement 1). In my judgment, using money to buy an existing business would be perfectly aptly described as "putting money into" that business. That would be the most normal method of taking over an existing business, which is the case to which paragrpah 36 expressly applies. Mr Pannick, appearing for the Tribunal, has submitted that to construe paragraph 35 in this way is contrary to what he claims to be the policy of these rules, which he says is to ensure increased capital investment in this country by introducing assets from outside. For my part, I find no indication of such a policy unless upon the true interpretation of paragraph 35 the money must be brought from outside the United Kingdom. For the reasons I have indicated, I do not think that this is the case. I now turn to a different question, namely, whether an applicant who seeks to enter the United Kingdom in order to carry on an existing business in the United Kingdom to which he has become entitled under a testamentary disposition, without putting any new money into that business, can be held to satisfy requirement 1. Precisely the same question would, I think, arise if the transfer of the business were inter vivos by way of gift instead of being testamentary. We have heard no argument about the date at which the requirements of paragraphs 35 and 36 must be satisfied. Paragraph 36 provides that an entry clearance is to be refused if an applicant cannot satisfy all the requirements of those paragraphs. In his judgment under appeal (transcript p 9C) Woolf J treated the material date as being the date of the refusal of an entry clearance by the entry clearance officer, which seems to be right. It has not been suggested to us that a claimant has any locus poenitentiae after that date pending a decision by an adjudicator or subsequently by the Appeal Tribunal. In the present case the notice of refusal of an entry clearance is dated 11 February 1982. I accordingly proceed on the basis that the claimant must establish that he must satisfy the requirements as at that date. The applicant's father devised and bequeathed all his estate, including his several businesses in Sunderland, to his trustees upon trust for conversion, with power to postpone conversion at their discretion, and directed that they should hold the net proceeds, subject to payment of his debta and funeral and testamentary expenses, upon trust for his son, the applicant, absolutely. By a codicil he bequeathed a one quarter share in one of the businesses, known as the Motiraj Indian Restaurant, to an employee named Miah who was also one of his executors and trustees. The will and codicil were proved in the Newcastle-upon-Tyne District Registry on 23 April 1981. There is no evidence that all the testator's debts and funeral and testamentary expenses had been paid at 11 February 1982 or have yet been paid. So far as I am aware that aspect has not been investigated. In the absence of any evidence to the contrary I think that for present purposes it should be assumed that the estate had been cleared of liabilities by 11 February 1982. At any rate the contrary has not been established. If so, the applicant as the sole beneficiary was entitled to call for a transfer of all the assets of the estate apart from the Motiraj Restaurant in their unconverted state. As regards that restaurant, the applicant was not the sole beneficiary by reason of Mr Miah's interest, but the evidence indicates that the business has been carried on by Miah as a manager. I understand that it is still being so carried on, which suggests that Mr Miah, like the applicant, is and has at all times been content to leave the assets of that business in the business. As regards all the assets of the estate apart from the Motiraj Restaurant the applicant was at the relevant time in equity absolutely entitled to them. They were at his disposal to use as he might think fit. As regards the Motiraj Restaurant it seems highly probable that the applicant could, if required to do so, have satisfied the adjudicator and the Tribunal that Mr Miah was willing to agree that all the assets of that business should continue to be used in the business in the ordinary course of that business. This, however, has never been investigated because the adjudicator and the Tribunal adopted the view that the applicant could not satisfy requirement 1 because he was not proposing to bring any new money into the testator's business. This, in my judgment, was an erroneous view. If the owner of a business which is a going concern dies having by his will bequeathed the business absolutely to a single legatee, all the assets employed in that business at the testator's death became the absolute property of the legatee. He may continue to use them in the same line of business and at the same location; he may change the character of the business, using the existing assets in a business of a different character; or he may wind up, or dispose of, the existing business, realising the value of the assets employed in it, and in that case he may invest the proceeds of that realisation in another business of the same character as that of which he has disposed or which he has wound up, or of a different character. In which, if any, of these three cases, could he be appropriately said to have put money into a business? Clearly, in my judgment, this could be so in the last case: he would have put money into the new business. So also, in my view, in the second case in which the legatee would transfer valuable assets out of one class of business to a new business of another class. Property capable of being easily converted into money is very commonly decribed by, or understood to be embraced by, the comprehensive term "money". The first of the three suggested courses of action is perhaps the least obviously to be recognised as putting money into a business; but bearing in mind that the assets are the legatee's to do with as he chooses and that the business as conducted by him is, in my view, more accurately to be regarded as a business conducted in succession to the testator's business than as a continuation of the testator's business, I consider that no violence to language is involved in describing the legatee as having "put" those assets into his business. This may be said to be the more so in the present case, in which what the applicant is strictly entitled to under the terms of his father's will is the proceeds of the conversion of the assets bequeathed on trust for him. If in fact the business continues to be carried on as the claimant wishes, this will be due to an act of volition on his part in taking the assets in their unconverted state. Whether the applicant will choose to take the assets in their unconverted state is not yet clear. If he is admitted to the United Kingdom he will do so: otherwise he will presumably call on the trustees to sell them under the trust for conversion. The assets are nevertheless presently at his disposal. It would, in my opinion, be surprising if the rules were intended to produce a different result in the first of the three supposed cases from that which they would produce in the second and third. An unincorporated business carried on by a sole proprietor has no existence recognisable by law apart from that proprietor. The assets employed in the business are his property and the business consists of his use of those assets. If he sells the business as a going concern he sells the assets employed in the business including, it may be, the goodwill of the business. The purchaser buys those assets, putting his money into the purchase. He thenceforth carries on the business. He does so in succession to the original proprietor, but it would, in my opinion, be inaccurate to say that he carries on the original proprietor's business: he carries on his own business with assets acquired from the original proprietor. That is, in my judgment, a new business. The same reasoning would, in my judgment, apply with perhaps greater clarity if the purchaser were to acquire only a branch or part of the original proprietor's business. By parity of reasoning, if the sole proprietor of a business dies while engaged in carrying on that business, the legal ownership in the assets employed in the business passes to his legal personal representatives. If they continue to carry on the business, they do so as new proprietors, albeit in a fiduciary capacity; and the business which they so carry on falls, in my judgment, to be regarded as a new business carried on in succession to that of the deceased proprietor. If and when in due course of administration, the assets of the business are vested in a sole legatee, the business should, in my opinion, be regarded not as the deceased proprietor's business into which he had put money, but as a new business into which the legatee has put those assets of his which he has elected to employ in carrying on a business of the same character as that formerly carried on by the testator. Before the adjudicator counsel appearing for the applicant did not pursue the applicant's claim to an entry clearance under paragraphs 35 and 36; he relied on the applicant's alternative claim to a clearance as a person of independent means under paragraph 38. The adjudicator's note of counsel's submissions relates exclusively to paragraph 38. The adjudicator, nevertheless, dealt in his determination with the position in regard to paragraphs 35 and 36, as well as in regard to paragraph 38. He said in the course of his determination that counsel did not press the claim under paragraphs 35 and 36 because the requirements of those paragraphs were not satisfied, and he went on to say:

"I consider that the requirements of those paragraphs were not satisfied. The appellant is not introducing any new capital into the business, nor has it been shown that the appellant's experience is such as to ensure that his services and investment will create new, paid, full-time employment for persons already settled in the United Kingdom."

The adjudicator was clearly relying on requirements 1 and 9. Before the Immigration Appeal Tribunal counsel then appearing for the applicant was permitted to put forward the claim under paragraphs 35 and 36. In their own determination the tribunal cited the passage which I have just set out from the adjudicator's decision and said:

"We consider that these findings of fact by the adjudicator were adequately supported by the evidence before him."

The Tribunal was clearly adopting the same stance in this respect as the ajudicator. The applicant applied for judicial review. That application came in due course before Woolf J. The learned judge took the view that the critical issue for his determination related to the proper interpretation of the rules contained in paragraphs 35 and 36. He considered that the facts relevant to the application of those rules to the case depended on the documentary evidence rather than the oral evidence in the case and that the Tribunal was in quite as good a position as the adjudicator to draw inferences from these documents, and that it was open to them to review that documentary evidence; but he did not reach his conclusion on the ground that they had erred in not doing so. He treated the matter as turning on the interpretation of the rules. Counsel for the Tribunal had submitted to the learned judge that the rules do not cover a situation where someone inherits businesses which are already established in this country. Of this the learned judge said:

"If the rules are read literally, there is no doubt that [councel's] interpretation is correct."

He went on to say that, if that interpretation were to be adopted, this would lead to "an astonishingly unattractive result", which he went on to explain. On that basis and applying, as I understand him, a principle of looking at the matter "in the round", he held that paragraphs 35 and 36 should be construed as covering not only a situation where the applicant has not yet put his money into a business, but also where money has already, at an earlier stage, been put into the business by the applicant. For those reasons, which I hope I have adequately explained, in my judgment the business assets comprised in the applicant's father's estate are, subject to the concurrence of Mr Miah in respect of his one-quarter share in the Motiraj Restaurant, at the disposal of the applicant as (apart from the one-quarter share) his own property, which he can and, if admitted to the United Kingdom, will put into the business which he wishes to carry on in succession to his father. There remains the question whether those assets which are at the applicant's disposal are worth at least @100,000. The Tribunal only considered this in relation to the applicant's claim to an entry clearance as a person of independent means under paragraph 38. They dealt with the point very shortly, merely saying that:

"It is quite clear that at the date of the decision appealed against the appellant did not have a sum of @100,000 or more under his control in this country."

For my part, I am left in some doubt whether their reason for saying this was based on the valuation evidence or upon a view that for some reason the business assets were not to be taken into account. The learned judge took into account an affidavit of the applicant sworn after the date of the tribunal's determination. Taking that material into account the learned judge thought there were indications that the businesses were not currently being operated to their full potential. If that is in fact the case the tribunal might well consider that it has a bearing on the valuation evidence as well as upon the position under requirement 9. The learned judge said:

"The whole approach of the Tribunal, the adjudicator and the Secretary of State had been to focus on the counterclaim with regard to [requirement 1]. It appears to me that there was just sufficient material in regard to the other requirements before the tribunal to regard this as a case where justice requires the matter to go back to the tribunal so that they can consider the whole situation directing themselves in the appropriate manner as to the proper interpretation of the rules."

I agree with that approach. I would only add this, that in considering the valuation evidence the Tribunal appears to me to have paid scant attention to the special circumstance that of the four years for which profit and loss figures are available, viz:- Year ending 31st October 1979 Profit @15,000 1980 Profit @13,156 1981 Loss @18,000 1982 Profit @11,713 Only the year ending 31 October 1981 shows a loss, being the year immediately following the applicant's father's death, and that a marked recovery was achieved in the following year, which suggests to me that in the year to October 1981 the business may have been adversely affected by circumstances special to that year, and that the loss incurred in that year should not be allowed to devalue the business too much. For the reasons which I have indicated I for my part would dismiss this appeal.

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