Judicial Review

15
Nov

R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur ”business expansion” fairness generally) [2017] UKUT 00406 (IAC)

Judicial Review Decision Notice Summary

 

Facts

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.

Decision

The initial refusal was based on the interview by the ECO that :

  • The applicant did not have viable or credible documentary evidence to funds of £200,000
  • Under paragraph 245 DB (f) (iii) £200,000 were not available until such time as it is spent for the purposes of the business because Mr Anjum wanted to spend the monies on purchase of ebay shop for £50,000 from the funds. Therefore, the remaining balance of £150,000 could not be satisfied as required under the Rules.
  • The applicant did not have sound knowledge of his business plan.
  • The applicant failed to answer on the business projected turnover for 2016. Therefore, the ECO concluded that a reasonable entrepreneur would be expected to have good grasp of his business’ finances and did not reflect the market research.

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.

Procedural Unfairness 

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.

23
May

R (on the application of Onowu) v First-tier Tribunal IJR [2016] UKUT 00185 (IAC)

R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)

The Judicial Review hearing was held on 22nd January 2016 in relation to review a decision made by First-tier Tribunal Judge Cruthers, which was sent on 17th March 2015 to the both parties allowing to extend time to apply for permission to appeal to the Upper Tribunal against a decision of First-tier Tribunal Judge Canavan.

The decision of Judge Canavan’s allowing the applicant’s appeal was made on 15th January 2015, and the permitted to appeal against this decision within 14-day timeframe pursuant r.33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chambers) Rule 2014. However, the Secretary of State applied for permission to appeal against the decision dated (15th January 2015) on 25th February 2015, which is significantly beyond 14 days permitted timeframe.

In assessing whether the permission to extend time for appeal should be granted, a Judge should consider an application in three stages as commended by Secretary of State for the Home Office Department v SS (Cong) & Others [2015] EWCA Civ 387 taking into account the learning from Mitchell, Denton and Hysaj:

  1. The first stage concerns seriousness or significance of the failure in relation to compliance with the rules. In other words, whether the conducted breach was serious or significant should be assessed. If the breach is not serious, the permission must be allowed, thus unnecessary to go for the second stage. However, if the breach is serious or significant, the second and third stages play vital role here.
  2. The second stage is to identify why the breach was happened, which concerns the reasoning of the failure. Strictly speaking, a reasoning for the default must be scrutinised. If a Judge finds a good reason for the breach, it is likely that relief will be granted. However, according to the point which was made in Denton, if both first and second stages find there is a significant or serious default and the reasoning is not good for the breach, the court should automatically refuse the permission. It is essential to consider the third stage.
  3. The third stage involves an evaluation of all the circumstances of the case in order the court to make justice. According to the Civil Procedure Rule 3.9, two factors must be given particular weight, which are ‘(a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and courts orders…‘

However, Judge Cruthers’ decision to allow time extension of the appeal was expressed in two inconsistent sentences, which are read as follow:

‘the application for permission to appeal is out of time (by about 25 days). But having regard to the interests of justice, I have decided to admit the application’

After analysing the above mentioned rules and precedents, the decision of Judge Cruthers’ is unexplained and unreasoned and cannot be determined whether required three stages process was undertaken. For this reason, Upper Tribunal Judge O’connor quashed the Judge’s decision to extend time for the SoS to apply for permission to appeal to the UT.

Both the First-tier Tribunal and the Upper Tribunal have to apply three stages in deciding whether to grant a permission to exercise discretion to extend time as commended by the Court of Appeal in Mitchel v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1663.

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