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Sabir & Ors , R (on the application of) & Anor v The Secretary of State for the Home Department – Tier 1 Entrepreneur Judicial Review

Posted by Admin on January 08, 2016

This is a judicial review hearing in the High court heard before Helen Mountfield QC on 22/01/15.

The Claimants are Mr Sabir and Mr Mehmood whom are both co-directors of a business called “Your business Companion Limited”. In this case they seek to challenge the decisions of the Secretary of State for the Home Department (“SSHD”) who refused them leave to remain as Tier 1 (Entrepreneur) Migrants.

Chronology of Events

The Claimants were both in the UK as Tier 1 (Post Study Work) Migrants and had leave to remain until 20/09/12. On 21/09/12 both Claimants made applications for further leave to remain as Tier 1 (Entrepreneur) Migrants, a day after the expiry of their leave, due to negligently lodged applications by their immigration consultants. Technically, they had become over stayers on 21/09/12 as their application had not been submitted prior to the expiry of their leave and consequently their leave was not automatically extended until their applications were successfully decided. Although the SSHD ultimately refused the Claimant’s application by way of refusals dated 07/05/13 and 08/05/13, this was not due to their applications being submitted out of time but rather because they had not score the requisite number of points.

Tier 1 (Entrepreneur) – The Requirements

To be entitled to apply for leave to remain as a Tier 1 (Entrepreneur) migrant, the applicant has to score the requisite number of 95 points. Additionally, the applicant has to comply with the evidential requirements to demonstrate that he is already engaged in genuine business activity in the UK which are set out in Appendix A of the Immigration Rules. The SSHD refused the Claimants’ applications as they failed to satisfy the evidential requirements of both 41-SD(c)(iii) and (iv) of Appendix A and thus, not scoring the total number of 95 points.

Under Paragraph 41-SD (c)(iii), the Claimants were required to provide one or more of the following specified documents which included:

 “ [1]Advertising or marketing material, including printouts of online advertising, that has been published locally or nationally, showing the applicants name (and the name of the business if applicable) together with the business activity;…”

Under paragraph 41-SD(c)(iv) of Appendix A to the Immigration Rules, requires the Claimants to provide one or more contracts showing trading. If a contract is not an original the applicant must sign each page of the contract. The contract was required to show, among other things,

“…(3) the name of the other party or parties involved in the contract and their contact details, including their full address, postal code, landline phone number and any email address.”

The SSHD believed the advertising material submitted in an attempt to show the Claimant’s were working did link the business to the Claimant’s directly. Additionally, the document which the Claimants had submitted to evidence they complied with paragraph 41-SD(c)(iv) was a contract between their company and a company called Hants Petroleum UK Limited. Although the contract stated Hants Petroleum’s name, post address, a mobile phone number and an email address, it did not contain the landline number as required.

Grounds for Judicial Review

There were three grounds of challenge against the SSHD. The Claimants’ challenge was on the basis that the evidential requirements of Appendix A of the Immigration Rules were unlawful because they were irrational.

The first ground raised, related to the evidential requirements regarding the contract with Hants Petroleum UK Limited. The second, related to the evidential requirements relating to the advertising material submitted and the final ground of challenge related to the failure of the SSHD exercising her discretion (in line with rule 245AA of the Immigration Rules) to apply an element of evidential flexibility in certain cases.

Rule 245AA applies where an applicant has submitted specified documentation, but in the wrong format. In such circumstances, the SSHD has discretion under rule 245AA(d) to contact the applicant to allow him to rectify errors in the material submitted.

However, this discretion could not arise in the circumstances of this case as the issue which the SSHD found with the Claimants’ documents, was not with their format, but rather that they did not contain information which they were obliged to contain. And so, this ground, although not pursued by the Claimants’ counsel, would have failed.

In relation to the second ground, as the advertising material lacked information linking the claimants’ to the genuine business and as the court did not find the requirements irrational, this ground failed.

As the second ground of judicial review had failed, the first ground consequently failed. The Claimants would not have scored the requisite number of points as they would have had to satisfy the elements of both paragraphs 41-SD(c)(iii) and (iv). It was therefore “unnecessary” for the court to reach a view on the first ground of challenge.

 Conclusion

Although the Claimants failed to succeed on the aforementioned grounds the court did accept the Claimants’ argument that it should not be an absolute requirement for a business to have a land line in order for it to be considered as genuine.

“….to reject a potentially very large contract as proof of genuine trading on the happenstance that the client business has chosen to operate using only mobile and not landline telephones would seem to me to go further than can be regarded as reasonable to secure the genuineness requirement, and to introduce a partiality between different applicants which is not explained or justified by the ostensible objective of the rule. No evidence has been put in to explain the rationale for an absolute requirement that for evidence of a contract with a client business to be accepted as proof of genuineness, the client business must both have a landline and include it in contractual documentation; whereas a contract with an otherwise identical client business would be regarded as proof of a genuine trading relationship provided it had a landline telephone number, even if it does not have a website or email address at all, and even if it does not have any mobile contact telephone numbers.”

As the Claimants could not succeed on all grounds the application for judicial review was dismissed.