R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur – business expansion – fairness generally) [2017] UKUT 00406 (IAC)
It is not often that there are reported decisions from the Courts and Tribunals looking in depth at the Tier 1 (Entrepreneur) category and even less frequent that the Tribunal considers the genuine entrepreneur test (For previous cases about genuineness see here or here). These cases are important, because while the Home Office produce guidance on the category, it is through the Tribunal decisions that we see independent reviews of how, in practice, the Home Office are and how they should be interpreting their Immigration Rules.
The case of Anjum relates to a Judicial Review of a decision to refuse an Entrepreneur migrant Entry Clearance to the UK. This was an initial application to enter the category which was refused on the basis that the Applicant was not a genuine entrepreneur.
As part of the application process, the Applicant was interviewed. Many individuals who have been through an Entrepreneur interview, or have had clients go through this process, will recognise the Applicant’s claim that the interview record was ‘manifestly incomplete, unclear or unintelligible’and that basic fairness would have required the interviewer to follow up on answers which had been given, which did not happen.
All too often we see poorly kept interview records which simply don’t make sense, and refusal decisions based entirely on these interview records. Applicants are often criticised for failing to give sufficient information in answer to a question in interview, where the interview record shows that the interviewing officer has simply moved on to other questions without even attempting to elucidate further information about the matter which they have considered to be insufficiently addressed.
There are often circumstances where the interviewing officers are clearly lacking in basic business knowledge and so their questions don’t make sense or their interpretation of answers is illogical. In the case of Anjum, this happens where the interviewer clearly does not understand the difference between buying a business (not a permitted use of investment funds) and taking over a business and investing into an existing business (permitted).
We often see this confusion on the part of the Home Office in cases where there is a permitted, but unusual, business structure. Confusion on the part of the interviewer is attributed to the Applicant and the specific reasons that the case is refused are never actually put to the Applicant. The Upper Tribunal in Anjum found that this approach is procedurally unfair in particular, the failure of the interviewing officer to probe for further answers, or to link the questioning to the business plan which was submitted with the application.
Hopefully, in light of this decision, the Home Office will update their interviewing policy and give further training to those both interviewing Entrepreneurs as well as those making decisions on Entrepreneur applications. This, though, even if it does happen, is likely to take some time to put in place at Entry Clearance posts across the world. However, it may give individuals who have already had their interviews a stronger basis for challenging decisions.
What then should an Entrepreneur do to prevent refusal following an interview?
- Ensure that your application is well supported with relevant documentary evidence, which helps to establish your business plans and the reasons why you are genuine in your intention to start/join a business in the UK.
- Make sure that you have a good knowledge of your business plan.
- Following any interview, make an immediate request for the interview and check its accuracy.
- If you have any concerns about the accuracy of the interview note, or the translations, efforts should be made to raise these concerns with the Home Office as soon as possible.
- Should your application be refused, consider whether there is merit in making a fresh application with new evidence or whether you should challenge the decision.
Contact Our Business Immigration Barristers
If you would like further advice about making a Tier 1 (Entrepreneur) application, or challenging a refusal decision, contact our immigration barristers on 0203 617 9173 or info@richmondchambers.com.
