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Tier 1 (Entrepreneur): Specified evidence and missing documents

There is not much entrepreneur case-law. Safeer & Ors, R (On the Application Of) v Secretary of State for the Home Department [2018] EWCA Civ 2518 is an example of the Court of Appeal’s approach to the strict specified evidence requirements of the Immigration Rules.  It will not be of great assistance to entrepreneurs with refusals due to documents overlooked by the decision-maker.

The case was heard on 24 October 2018 and Lady Justice Nicola Davies delivered the lead judgment, promulgated 13 November 2018.  This was an appeal against a refusal to give permission to judicially review a Tier 1 (Entrepreneur) refusal of December 2015 and the subsequent administrative review decision of January 2016.

There were two reasons for refusal of the 2015 application based on paragraph 245DD.  The first was a missing document – the Respondent maintained that the Current Appointments Report was not provided. The second was that the Appellant had not shown that he was actively trading, with reference to dates on websites not showing continuity of trading.

Was a Current Appointments Report provided?

In relation to the Current Appointments Report, the Appellant had indicated on his form that it was provided and his solicitor signed a Statement of Truth in the judicial review application including “I believe (the applicant believes) that the facts stated in this claim form are true”. In the Appellant’s witness statement of April 2016 he stated that the grounds for judicial review were accurate.

The Appellant argued that he had every reason to ensure that documents were safely and completely filed and the CAR could have been misplaced or missed when the decision came to be made by a member of the Respondent’s staff. Movement of the documents within the Home Office could lead to loss of a document.

The Respondent provided the GCID Case Record Sheet in respect of the Appellant’s application. It identified documents provided by the Appellant and stated no CAR was there.  The Administrative Review purported to check the file. The Respondent filed no witness statement or affidavit deposing to the checks carried out.

The Respondent relied upon the approach to be followed by the court in judicial review proceedings where there is a dispute upon the evidence in R (McVey and Others) v Secretary of State for Health [2010] EWHC 437 (Admin) at [35]:

i) The basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants’ evidence must be assumed to be correct;

ii) An exception to this rule arises where the documents show that the defendant’s evidence cannot be correct; and that

iii) The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant’s evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies.

The test that the documents shows that the Respondent’s evidence cannot be correct is a high one. In determining the application, the court’s role was to scrutinise the relevant evidence, and the Appellant’s evidence of the CAR was not of so compelling a nature as to demonstrate that the Respondent’s account could not be correct.  

The Court of Appeal followed the basic rule, rather than the exception to it – the first ground of appeal thus failed.

Were the specified evidence requirements of Table 4 Appendix A, 41-SD(e)(iii)(1) satisfied?

The relevant Rule paragraph was as follows:

(iii) one or more of the following specified documents covering (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 (as applicable), up to no earlier than three months before the date of his application:

(1) advertising or marketing material, including printouts of online advertising, that has been published locally or nationally:

(a) showing the applicant’s name (and the name of the business if applicable) together with the business activity;

The evidence relied upon comprised pages from the website dated June 2014. These identified the nature of the work, the type of tasks/projects which could be undertaken by the company, and identified the Appellant as the owner and director of the company, describing his role and address. On a separate page details are given of the creation of the domain name, also in June 2014, it is recorded as expiring in June 2015.  The Appellant’s case was that the provision of this documentation fulfilled all the requirements of the relevant section, dates were given, the online service would, by its very nature, result in local and national publicity.

The Court of Appeal approached this paragraph of Table 4 as having to be read in context with the requirement to show continuous business activity, which the Appellant’s documents did not. There was no evidence before the court as to what was happening on this website and in particular in the business activity of the Appellant up to 2015.

The conclusion at paragraph 23 provides little solace to entrepreneurs with no remedy save apply for permission to judicially review a decision and risk the associated costs and delay or to leave the UK and apply for entry clearance:

The rules require rigorous compliance, either the relevant documents are provided or the application does not succeed. The other documents submitted by the claimant, his letterhead, cards containing his business name, do not begin to demonstrate business activity during the relevant period and in any event are undated. The failure by the appellant to provide documents demonstrating continuous business activity between the relevant dates was a finding on the evidence submitted by the respondent which was properly made…”

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