Tier 1 (Entrepreneur) category - recent case-law
Following our review at the end of 2015, this article will discuss some of the case law relevant to Tier 1 (Entrepreneur) visa applicants. Information about the recent changes to the rules and the most recent statistics for entrepreneur applications can be found in other articles.
AH (BANGLADESH) & ORS v SSHD  EWCA Civ 1071
This was an application for permission to appeal to the Court of Appeal where Lord Justice Elias considered the retrospective applicability of the changes to evidential flexibility. The Appellant had applied before the change in the rules which allowed evidential flexibility to be exercised where information is missing from a specified document. Elias LJ noted that the new provision would have been of assistance to the Appellant, but concluded that the Rule could not have retrospective effect. With some sympathy for the Appellant the application for permission was dismissed, but the Judge encouraged the Home Office to reconsider their decision, notwithstanding the refusal of permission.
TA (NIGERIA) & ORS v SSHD  EWCA Civ 1235
In an application for permission to appeal from the Court of Appeal, Mr Justice Henderson found that there is an overriding duty for the Secretary of State to act fairly, but that the threshold for establishing the unlawful exercise of a discretion is a high one and therefore the standard paragraphs which are included on refusal letters referring to reasons why evidential flexibility under paragraph 245AA has not been exercised, are lawful.
This, however, was in a specific case where there were a large number of deficiencies in an application. In many refusal decisions, the Home Office standard paragraph on evidential flexibility is quoted inappropriately, misquoted, or incorrectly applied in cases where it has clearly been copied and pasted onto a refusal, rather than having been given any proper consideration by a caseworker.
NAWAZ AND OTHERS  CSIH 6
The Appellant applied for leave to remain as a Tier 1 (Entrepreneur) and relied on funds which were held in her husband’s account which he had made available to her. Her husband was a Dependant on the Appellant’s application. The Court concluded that Paragraph 245AA was of no assistance to the Appellant and then went on to consider the public law duty of fairness.
Their Lordships found that however detailed and prescriptive a policy might be, a decision maker must always be open to the facts and circumstances of the particular case. As a general rule there is no unfairness in refusing an application under the PBS rules which does not meet the evidential requirements but the general rule can be overcome in the circumstances of the case, for example where the SSHD is responsible for the problem, where the decision is perverse or in defiance of common sense.
HK (BANGLADESH)  EWCA Civ 963
This was the decision on an application for permission to appeal to the Court of Appeal, following the dismissal of an appeal in the Upper Tribunal. The Appellant had been refused leave as a Tier 1 (Entrepreneur) migrant as the specified documents submitted with the application intended to demonstrate that the business was trading did not meet the evidential requirements. Lord Justice Tomlinson found the ‘Second Appeals test’ had not been met, because this was a matter of fact which the Immigration Tribunal must decide and decisions of fact are not an area which the Court of Appeal will intervene.
MH (BANGLADESH) & ANR v SSHD  EWCA Civ 1442
The Appellant had applied for leave to remain as a Tier 1 (Entrepreneur) migrant, relying on funds from a third party. The letter from the third party’s bank did not meet the specified evidence requirements as there was information missing. There were also problems with the evidence submitted to meet the English language requirements. Lord Justice Moore-Bick granted permission to appeal on the basis that the funds were available in every real sense and that the evidential flexibility rules were engaged in relation to any defects in the evidence submitted.
MQ v SSHD  EWCA Civ 726
This was a decision of Lady Justice Rafferty in the Court of Appeal. The Appellant applied for leave to remain as a Tier 1 (Entrepreneur) migrant and did not include all the specified documents with his application, however, he wrote to the Home Office requesting permission to send further documents before a decision had been made. The Home Office invited him to submit the documents within a period of 7 days. Some of the evidence post-dated the date of the application. The Application was subsequently refused without the additional documents having been considered. Lady Justice Rafferty confirmed in refusing permission to appeal to the Court of Appeal that documents have to be in existence at the date of application. The Home Office letter agreeing to accept documents sent within 7 days did not amount to an agreement to consider the documents or to dis-apply the requirement that documents must be sent with the application.
SI (Bangladesh) v SSHD  EWCA Civ 737
This was an application for permission to appeal to the Court of Appeal. The Appellant applied for leave to remain as a Tier 1 (Entrepreneur) and submitted bank statements up to two weeks before the date of the application with a fluctuating level of funds. The Upper Tribunal Judge was not satisfied on the balance of probabilities that the funds were available on the date of application, even though the specified evidence was provided. There was no discussion of the relevant policy guidance and requests for further documents under the genuine entrepreneur test. Lord Justice Richards refused to consider any new evidence and refused permission to appeal.
For advice and assistance in relation to a Tier 1 (Entrepreneur) visa application or appeal, contact our specialist Entrepreneur UK immigration barristers on 0203 617 9173 or email firstname.lastname@example.org