The applicant, Mr Nadeem Ahmad Anjum, made a Tier 1 Entrepreneur application which was initially refused by the Entry Clearance Office (ECO) on 18th February 2015. This was on the basis that Mr Anjum did not satisfy the requirement under the Immigration Rules paragraphs 245 D & DB that he needed access to a ‘minimum of £200,000 which is held in one of the regulated financial institution and is disposable in the UK’.
The applicant challenged the above refusal on the grounds of procedural unfairness and misconstruction of the Rules.
The initial refusal was based on the interview by the ECO that :
Upon administrative review, the 1st ground of refusal was dismissed on the basis that the interview was flawed. The ECO did not clarify further on the source of availability for the funds and that the applicant’s response to the availability of requisite fund of £200,00 was misinterpreted.
But the 4th ground was sustained because that the applicant answered that the business projections was significantly less than the projection in his business plan. The ECO found that this undermined overall credibility and could not be expected of a genuine entrepreneur with a viable business plan.
The fact that the interviewing ECO was ‘rude and confrontational’ could not be put forward as an argument.
Fundamentally, during the interview with ECO, the applicant’s answers to some important questions were ‘incomplete, unclear or unintelligible’ in which case the ECO had to follow up to get clarification, explanation and elimination. But the ECO failed to do so as required under the fairness protocol.
Both ECO and ECM failed to understand that the applicant’s answer in relation to projected turnover was in relation to his existing business and not the future expansion of the proposed business. In the business plan it was clearly stated that the applicant intended on expanding his existing business. The ECO and ECM did not ask any questions regarding applicant’s business plan nor was any further question was asked on applicant’s response to ‘what is your projective turnover?’.
It was ruled that the word ‘turnover’ was both confusing and unfair because the applicant did not use the term ‘turnover’ in his business plan therefore it should have been probed in more detail by the interviewing ECO.
The applicant was a Pakistan national who needed an interpreter to answer ECO’s questions. No audio recording was taken, only written record of the ECO who was both questioning and writing at the same time. Therefore, the Court ruled that it was procedurally unfair to reject Tier 1 Entrepreneur application on the basis that the applicant failed to answer some questions which should have been probed and clarified by the interviewing ECO.
It was further highlighted that where a migrant is being interviewed, the principle of procedural fairness dictates that every context must be taken in to account. The court acknowledged that misinterpretation can and do occur when interviewing migrants. So where written interview is used to assess the application, the applicant must be given means to ensure all the written record is accurate and reliable. Critically, successive failures to respond to requests to disclose the interview record were in breach of the guidance.
Furthermore, the Court upheld applicant’s challenge that the Rules were misinterpreted.
Favourable facts of this particular case was that the applicant responded to the initial refusal within 2 days. Applicant’s solicitors further responded to the Respondent’s defence by submitting an ‘ Amended Grounds and Reply’. This is expressly permitted and is a useful device which is strongly recommended by the Upper Tribunal.
Crucially, para 245D(ii)(2) does not exclude existing businesses. The Rules do not prevent the applicant from using the £200,000 to purchase a second business for the purposes of expanding an existing business; in this case by purchasing an existing ebay shop.
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.
Minor changes to Tier 1 have been made in regards to the Genuine Entrepreneur Test for initial applications, such as, the Secretary of State can now make an assessment based on previous investment made in the UK by an applicant.
The case Mandalia v Secretary of State for the Home Department  UKSC 59 can be pivotal example in regards to whether the Presenting Officer has a duty to apply evidential flexibility or it is just a mere power. In this case, the Court of Appeal said: “power”, however, the Supreme Court said: “a duty”.
From August 2009, evidential flexibility was embraced, which allows applicants to repair the deficit in their evidence or correct minor errors in applications for Tier 1, 2, 4 and 5 main and dependent applicants.
The flexible process instruction falls into 19 steps, four of which relevant to the above mentioned case, which the caseworker has to undertake when there is missing evidence or minor errors in the application:
It was held that the Home Office’s refusal was unlawful as there was not any attempt firstly to invite Mr Mandalia to correct minor error specifically to repair the deficit in his evidence. Therefore, the court should allow this appeal, and annul the refusal of Mr Mandalia’s application.