Personal Immigration

Upper Tribunal delivers first reported determination on Tier 1 Entrepreneur category

The Upper Tribunal has today promulgated its first decision concerning an application for leave to remain as a Tier 1 Entrepreneur migrant under the points-based system. In Shebl (Entrepreneur: proof of contracts) [2014] UKUT 216 (IAC), the Upper Tribunal (Vice President Mr C M G Ockelton and Upper Tribunal Judge Grubb) held that the requirement to prove the existence of a "contract" in paragraph 41-SD of Appendix A to the Immigration Rules does not itself require the contract in question to be contained in a document. There is, however, a need for such a contract to be evidenced in documentary form.

In issue was whether purchase orders provided by the Appellant revealed that he was operating as a Sales and Marketing Director, as required by provision (d)(iv) of Table 4 to Appendix A, and whether he had provided a contract showing trading, as required by paragraph 41-SD(e)(iv)(1) of Appendix A.

The First-Tier Tribunal found that the combination of the Appellant's evidence and the documentation provided (including a Certificate of Incorporation, tax documentation, accounts, website information for the Appellant's company, his advertising and marketing information and numerous purchase orders/Pro-forma invoices and sales/commercial invoices) meant that the Appellant had demonstrated that he was operating as a Sales and Marketing Director. The First-Tier Tribunal also found that the combination of numerous purchase orders/pro-forma invoices and sales/commercial invoices formed, when looked at compendiously, formed contracts between the Appellant's company and the purchasers of his goods.

The Secretary of State appealed on the ground that on a plain reading of paragraph 41-SD(c)(iv), the purchase orders provided with the Appellant's application did not meet the requirements of the Immigration Rules. The Secretary of State's position was that the Immigration Rules envisaged a contract as being in a single document, and that a series of documents that together showed all material required by the rules did not constitute "a contract".  According to the Secretary of State, the documents did not detail the services that the Appellant's business was providing and therefore did not constitute a contract as defined in the rules.

The Upper Tribunal rejected the Secretary of State's contention in the following terms (paragraph 5):

"The intention behind the Rules is that the claimant be able to show that he is genuinely trading. It strikes us as inconceivable that the entrepreneur route was to be confined to the types of trading in which contracts are made by single documents. Paragraph 41-SD very properly specifies that there must be documentary evidence sufficient to show genuine contracts, and containing sufficient information to enable the Secretary of State to check the matter with the other parties for the contracts if she chooses to do so. But there is a world of difference between requiring contracts to be evidenced by a proper paper trail and requiring each contract to be contained in a single document. In our judgment the Rules require the former, but not the latter."

The Upper Tribunal proceeded to find that when looked at cumulatively, the documents submitted by the Appellant with his application included all relevant information and therefore did constitute a contract for the purpose of the Immigration Rules.

For advice or assistance with preparing an application or appeal in relation to the Tier 1 Entrepreneur category, contact our immigration barristers in London on 0203 617 9173 or email your enquiry to info@richmondchambers.com 

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