Sole Representative Visa: Genuineness and Legal Certainty
In my prior blog posts, we discussed the other amendments to the sole representative visa category.
Paragraph 144 of the Immigration Rules was simple. It placed great trust in the parent company. From the amendments in response to the anxieties, we can see that re-orientation is from the parent company to the sole representative. The Home Office will consider the representative’s skills, knowledge, experience, the ownership and control held by the sole representative and their partner, and refuse if it considers the application is merely a way to facilitate the sole representative’s entry or stay.
However, there is a final anxiety of the Home Office: genuineness. However, it has a dual purpose: it not only addresses the possibility that there may be inauthentic companies and applicants; it is an umbrella term which shields subjective and evaluative judgments by the Executive.
Sole Representative Visa Genuineness Test
Ultimately, the Home Office created its own monster. The closure of the Tier 1 (Entrepreneur) category last March forced businesses and business women and men overseas to consider new ways to bring their business to the UK. This route was the last indication that the UK was not entirely closed for business, only that certain aisles were off limits.
Many prospective sole representative applicants were founders and owners of the proposed parent company who wish to expand operations to the UK, without moving them here. Many parent companies were small independent family-owned businesses. The best person to open a branch or subsidiary in the UK was a person high up in the hierarchy chart, possibly an owner, co-founder, or a person with control. It may be the case that the proposed representative could pass off their responsibilities and control to others in order to enable a branch to be opened in the UK, under this route.
However, it seems the Home Office has been dissatisfied with that arrangement, and wants to push for a mere employee to move, ideally one with no control or ownership. They were limited by the requirements of the Secretary of State’s Rules, and so she amended them.
Of course, this is all circumspection, as it can only be deduced from decisions I have seen and the amendments made. The Explanatory Memorandum explains little.
Legal Certainty
Paragraph 144 of the Rules sets out all of the factors that should be considered when assessing an application of a representative of an overseas business. However, in the past year, before any amendment was proposed, it was clear that Entry Clearance Officers were going beyond the requirements prescribed by the Immigration Rules and Guidance and considering irrelevant factors, couched in ‘genuine’ and ‘credible’ phraseology.
Why is it problematic for the Home Office to read in a requirement of genuineness, one might ask. Sole representatives should be genuine, should they not? The problem is that reading in novel requirements leaves applicants (and their legal representatives) without legal certainty.
To ensure legal certainty, and thereby the rule of law, the Immigration Rules must be applied with sufficient precision and predictability to enable applicants to foresee the circumstances in which the law would or might be applied and regulate their conduct accordingly. In R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33 it was said with regard to certainty and section 3(2) of the Immigration Act 1971, ‘The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain’ [§97]. The genuineness factors, which were determinative in recent refusals we have seen, were not contained in the Immigration Rules or in the Home Office’s Guidance. This, of course, opened them to challenge.
Broad stroke amendments to the Rules appears to be the Secretary of State’s response. However, adding the word ‘genuinely’ before all of the requirements does not resolve the problem of legal certainty.
Genuineness Test for Sole Representative Visa
I never thought I would praise the Tier 1 (Entrepreneur) Rules, but at least they detailed the matters and the factors relevant to the genuineness assessment. For example, paragraph 245DB(f) stated, “The Entry Clearance Officer may take into account the following factors: (i) the evidence the applicant has submitted; (ii) the viability and credibility of the source of the money […]; (iii) the viability and credibility of the applicant’s business plans and market research into their chosen business sector; (iv) the applicant’s previous educational and business experience (or lack thereof); (v) the applicant’s immigration history and previous activity in the UK; and (vii) any other relevant information.”
Detailed Guidance explained how the genuine entrepreneur test would be conducted in a paper and interview assessment with a non-exhaustive list of evidence that could be provided. This provided applicants with some legal certainty. That is not to say that no irrational or unlawful decisions were ever made, but they could be overturned on administrative or judicial review with reference to the Rules and Guidance. This placed legal representatives on better footing to assess the merits of an application, and assess any unfairness, illegality or irrationality in the decision making process.
To find grounds for a negative decisions in sole representative applications, I have seen interviews (akin to those for entrepreneurs), and assessments of business plans with reference to “reasonableness” of business decisions, or the level of in depth research, when of course a business plan is not even specified document for sole representatives in paragraph 144 (currently and in the Statement of Changes).
The Tier 1 (Entrepreneur) Rules specifically required a business plan, and it was sensible that an entrepreneur would know their own business plan. For sole representatives, in the Guidance (at page 16) the employer’s business plans are only relevant to decide whether the sole representative would have “the authority to take the majority of key operational business decisions locally.” However, an Administrative Reviewer in a decision I saw recently claimed that, “Not submitting a business plan and not being able to produce one if asked by the assessing officer would significantly undermine your credibility as a business representative”. Therefore, I am sure that sole representatives will continue to be quizzed on the parent company’s plans, and expected to prove they know them forwards, backwards, and to a decimal point. If they fail to, the broad genuineness requirement will be used to impugn their recruitment, intentions, skills, knowledge, experience, and authority.
An Appeal for Certainty
Downing Street has continued to promise a new points-based system, to make the system simpler and fairer. Those plans have no apparent relation to this route. Forget points. The Rules do not even provide guidelines as to what factors are relevant, even less so how they will be assessed or weighed. Despite these amendments, from 4 June 2020, we will remain in the dark.
The Secretary of State may update her interpretative Guidance, but if it contains additional requirements which will lead to applications being refused if they are not satisfied (as in Alvi), they should be contained in the Immigration Rules, which are currently too scant and permit too much subjectivity.
Perhaps the Secretary of State amended her Rules to avoid their ambiguity being exploited. However, the Secretary of State ought to ask herself if she is not exploiting the ambiguity she has created, through sweeping references to “genuineness”. She places the burden on applicants to prove a positive (their genuineness), rather than presuming them to be genuine until she can prove otherwise. She must also know that she can use the word “genuine” as a shield for her evaluative assessments, with which a public law court will rarely interfere.
Mr Justice Saini in R (on the application of Karagul & Ors) v Secretary of State for the Home Department [2019] EWHC 3208 recently held (albeit in relation to ECAA business plans), “The context in which the evaluative assessments are to be undertaken by the Secretary of State gives her a wide margin of appreciation as to the merits and feasibility of proposed businesses and whether they meet the paragraph 21 requirements. Specifically, it would be in a rare and extreme case that a court on judicial review would second-guess an overall assessment by the Secretary of State that an application failed on the merits.”
Blunders could be avoided and relevant matters addressed by applicants and their legal representatives, if only the Rules were drafted with greater precision. This is an appeal for the Secretary of State to do so, rather than hiding behind her vague references to genuineness.
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