The Dangers of Specified Information and Documents for Tier 1 (Entrepreneurs): Awan v SSHD [2018] EWCA Civ 1988

In the case of Awan v Secretary of State for the Home Department [2018] EWCA Civ 1988, Underhill LJ considered whether to permit Awan to appeal against the decision of the Upper Tribunal, which had upheld the refusal of his Tier 1 (Entrepreneur) application. Although relating to a very specific factual matrix which will likely be inapplicable to most Tier 1 (Entrepreneur) applications, the judgment highlights the exacting nature of the Immigration Rules and the difficulties of challenging a refusal if specified information is missing.

The application centred on the Tier 1 (Entrepreneur) rules for applicants switching from Tier 1 (General). Applicants are required to provide specified evidence showing that the business was active before 11 July 2014 or 6 April 2015 and that it remained active throughout the period leading up to the date of his application, comprised in part by “advertising or marketing material, including printouts of online advertising, that has been published locally or nationally, showing the applicant’s name (and the name of the business if applicable) together with the business activity…” (previously 41-SD(e)(iii)(1), and now 44(c)(i)).

Awan had provided a hard-copy leaflet, which on its face did not contain the information about its publication, and would of course not show where it had been distributed: locally or nationally. This information would need to be provided in another form.

When is 245AA(b)(iv) engaged?

The question to be determined was whether the missing information fell under the provision of 245AA(b)(iv) of the Rules, such that the Secretary of State should have contacted the applicant or his representatives and requested the information. 245AA(b)(iv) reads:

“If the applicant has submitted the specified documents and: … a document does not contain all of the specified information; the … Secretary of State may contact the applicant or his representative in writing, and request the correct documents.”

Underhill LJ found that it was not arguable that 245AA(b)(iv) applied in a case of this kind: ‘On any natural reading of the rule, the information in question must be information of a kind which would have been “contained” in the document. Information about publication will of its nature necessarily be extraneous’ [7]. He was not persuaded by the argument that because the publication information was specified in the rule and was literally not “contained” in the document 245AA(b) should be engaged.

The context of the rule is concerned with defects in the specified document and not with information that is extraneous to the document, and which is missing. Underhill LJ supports his interpretation of 245AA(b) from the closing words of that rule which refer to sending “the correct documents”. Therefore, it was decided that an appeal against the decision of the Upper Tribunal had no realistic prospect of success and permission to appeal was refused.

How is discretion exercised to request the correct documents?

What if 245AA(b) had been engaged, would the then Secretary of State have failed to exercise her discretion and make such a request for the specific information she required? Obiter, Underhill LJ finds that she would only have been obliged to request, in general terms, the information of national or local publication required; she need not have made a specific request for the particular details of the information required. In Awan’s case she did not need to particularly ask the highly pertinent question of whether the distribution of the leaflets began prior to 11 July 2014.

Cases like these demonstrate the importance of attending to every detail of the Rules and ensuring that all specified documents and information are submitted with the application initially, to avoid refusal, as the Secretary of State will not necessarily be under an obligation to request the specific missing information.

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