9 August 2017 oOpinion of Lord Summer
Clarification on one of the conditions of stay for the Tier 1 (Entrepreneur) Visa: ‘no employment other than working for the business or businesses that you have established, joined or taken over but working for such business(es) does not include any work you do which is effectively employment with another business’.
The petitioner was a Nigerian national and a qualified engineer who studied in the UK, and then applied for permission to remain. He was granted leave until 6 January 2018.
Leave was permitted in a letter under the provisions made for entrepreneurs who wish to establish businesses in the UK. The petitioner was not permitted to “undertake employment other than working for the business(es) you are establishing, joining or taking over”. This wording follows the wording of the Tier 1 (Entrepreneur) Policy Guidance.
This condition does not confine the permission to remain to employment with a single business and acknowledges that in some situations the entrepreneur may start up other businesses in addition to or in substitution for the original business. There is no indication that the businesses must be in the same sector.
In this opinion, Lord Summer reminds that leave can be curtailed where there has been “failure to comply with any conditions attached to the grant of leave to enter or remain”. There is no statutory right of appeal where leave is curtailed, consequently judicial review of the decision is the only remedy available to challenge the curtailment.
The petitioner established a company and through the Company offered his services to the oil and gas sector. However, the petitioner also worked as a security guard for another company and the employment did not entail the provision of expert engineering services. The respondent’s position was that he had breached a condition of his leave to remain and was liable to removal.
The petitioner argued that since the Home Office Guidance permitted the petitioner to commence and run other businesses, he was at liberty to work as a security guard. It was argued that he was not an employee and that he provided his services as an independent contractor trading under a trading name.
However, the petitioner was only permitted to remain in the UK if he was employed with a company which he had “established, joined or taken over” (Policy Guidance A/41). The only business the petitioner claimed to have “established, joined or taken over” was the first Company. He plainly had not “established” or “taken over” the second company.
The question remaining is the definition of ‘joined’. By taking up employment with the second company, could the petitioner be said to have “joined” it? The Policy Guidance is not meant to apply to persons who join a company as a member of staff unless that employment was connected in some way to the investment of skills or capital in the business. The words “established” and “taken over” suggest that a person “joins” a company when he or she becomes e.g. a partner or shareholder in the business with a view to investing in it.
The key is whether the work being done for another business whether as an employee or a self-employed capacity has collateral benefits for or is connected to a business that the petitioner has “established, joined or taken over“. The underlying condition is to determine whether there is genuine entrepreneurial activity.
The employment whatever its form is the same as employment by “another business,” when the person has no control on the business or in which he has no business interest. The Policy Guidance should be clarified on this point which is quite vague.
In this case, Lord Summer decided that the petitioner’s work of security guard was not within the scope of his permission.
If you think about applying for a Tier 1 (Entrepreneur) Visa or have questions about corporate or private immigration, please feel free to contact our senior solicitor Pam Barar or our immigration team.
The 28-day grace period of allowed overstay is abolished now. If the particular application has not been approved, 3C leave has expired, a time limit to appeal or bring administrative review has expired or an appeal or administrative review has finished, there now is a 14-day grace period so that a new application can be submitted.
The change does not affect periods of time prior to 24 November 2016 that will be disregarded for Indefinite Leave to Remain applications based on continuous lawful residence.
Please contact us should you have any queries regarding these changes.
The Government will review the level of fee increased which was introduced recently, while it is under review the fees at previous levels will apply and make refunds to applicants who have paid the increased fees.
Minister of State for Courts and Justice, Oliver Heald stated that immigration and asylum fees have been reviewed to the balance the interests of all tribunal users, the taxpayer and to compare them with the other tribunal fees and in the wider context of funding for the system overall. All applicants will be charged fees at previous levels.
Alongside the fee changes introduced the fee exemptions were extended offering in the First-tier Tribunal the following:
It is believed that these changes are reasonable and safeguard majority of vulnerable users of the Tribunal. Therefore, the amended procedure of fee exemptions will remain.
Additionally, the purpose of fees in the Upper Tribunal will be re-examined, and new proposals for Tribunal fees will be brought forward including in the Immigration and Asylum Chambers of the First-tier and Upper Tribunals in due course.
This appeal raises issue of whether a person who is refused a residence card as an “extended family member” has a right of appeal to the FTT under regulation 26 of the EEA Regulations 2006. The appellant is a citizen of Albania, who entered the UK illegally in June 2011. In May 2013 the appellant applied for a residence card as the EFM (extended family member) of an EEA national of Slovakia with who he claimed to have a durable relationship and as such was an EFM under regulation 8(5) of the EEA Regulations 2006. EEA national of Slovakia was exercising her Treaty rights.
October 2013 the application for a residence card was refused by the Secretary of State. The Secretary of State was not satisfied on the evidence that the appellant’s relationship with his EEA partner, though genuine, was a durable one. In addition, it was concluded that as the appellant had entered the UK illegally he had not “provided enough evidence to allow the Secretary of State to exercise the discretion in appellant’s favour”.
The notice of the refusal to issue a residence card stated that the appellant had a right of appeal against the refusal under section 82 of the Nationality, Immigration and Asylum Act 2002 and the EEA Regulations Act 2006.
The appellant appealed to the FFT, and in a determination dated June 2014 the Judge dismissed the appellant’s appeal under the EEA Regulations 2006 and also under Article 8 ECHR. The Judge accepted that the appellant and his EEA national partner were in a “durable relationship” and thus the appellant was an EFM under regulation 8(5) of the EEA Regulations 2006. As regards the exercise of discretion to issue a residence card under regulation 17(4) of the EEA Regulations 2006, the Judge stated that the Secretary of State did not consider the requirement of regulation 17(5) that there be an “extensive examination of the personal circumstances”, and after consider this point of the regulation, the Judge concluded that the Secretary of State’s exercise of discretion should not be exercised differently and subsequently dismissed the appeal under the EEA Regulations 2006.
Furthermore, the appellant sought permission to appeal to UT on the basis that discretion should have been exercised in the appellant’s favour under regulation 17(4). Permission was refused by the FTT but in October 2014 the UT granted the appellant permission to appeal on the basis that it was arguable that the Judge’s approach to the exercise of discretion was flawed.
The appeal was listed for February 2015. The Tribunal raised two issues:
The appeal was adjourned and took place in July 2015. The representatives of the appellant made representations to the UT that the appellant, being an EFM, did have a right of appeal under the 26(2A) EEA Regulations 2006 against the discretionary refusal to issue a residence card. The Tribunal reserved its determination.
Once the residence card is issued, the EEA Regulations 2006 place EFMs in the same position as family members“, and therefore the EFM has the same right to admission and residence under EEA Regulations 2006 as does a “family member”.
The rights of family members derive from the Citizens Directive, however those of extended family members derive from national law apart from the procedural right to have their applications determined following extensive examination of their personal circumstances. Family members have rights independent of being issued with a residence card, whereas extended family members rights derive from the exercise of the Secretary of State’s discretion to issue a residence card, their substantive rights arise only after the card is issued.
Under regulation 26(1) an EFM based upon durable relationship with an EEA national must have a right of appeal, otherwise there would have been no point in placing a limitation on such a person’s ability to appeal.
Consequently, the appellants right of appeal rests on the following:
The issue in this appeal is whether that decision concerns the appellant’s entitlement to be issued with a residence card.
Under regulation 17(4) a decision involves two steps from which an individual’s entitlement to the residence card flowed. Step one requires to establish that the individual is an extended family member of a qualified person or an EEA national with a permanent right of residence. Having established that, step 2 requires the Secretary of State to exercise discretion whether to issue a residence card. If the Secretary of State makes an adverse decision in respect of an individual at step 1 or 2 then it is a decision which concerns an individuals’ entitlement to a residence card.
The representatives of the appellant argued that Parliament supported the position that EFM which derives from a durable relationship had a right of appeal including against a refusal of a residence card. Regulation 26(2A) would make no sense if an EFM had no right of appeal.
However, it is argued that the decision making process leading to the outcome does not entail a “right” or an “entitlement” to the card and any decision made cannot “concern” an “entitlement” to the residence card when the decision making process does not entail such an entitlement. The judgement under regulation 2(1) with which this case is concerned does not include a decision to refuse a residence card to an EFM under regulation 17(4) or to refuse a registration certificate to an EEA national EFM under regulation 16(5).
A decision taken by the Secretary of State in the exercise of her discretion not to issue an EFM with a residence card under regulation 17(4) is not a decision under the EEA Regulations 2006 which “concerns a person’s entitlement to be issued with a residence card”.
To conclude, it follows that the appellant has no right of appeal. The FTT had no jurisdiction to hear the appeal. It erred in law in doing so.