Tier 1 Entrepreneur - Upper Tribunal gives a hand
03 February 2018
It is fair to say that Tier 1 Entrepreneur visas are a tricky subject. The refusal rate is around 50%, which is very high.
Not only this but - as with all the other points-based system visas - there is no right of appeal to the First-Tier Immigration Tribunal in the event of a refusal. There is only the right to Administrative Review (which is carried out by the UKVI, who made the refusal decision in the first place) and the subsequent right to Judicial Review before the Upper Immigration Tribunal.
The latter is a rather "clunky" process and in many ways not as satisfactory as an appeal. For example the judicially reviewing judge is unlikely to simply overturn the UKVI’s decision; the strongest remedy available is likely to be that the judge quashes the decision and orders the UKVI to re-take it on a lawful basis.
But Judicial Review is certainly a lot better than nothing, and in a recent Upper Tribunal case called "Anjum", Mr Anjum (an aspiring entrepreneur from Pakistan) got at any rate some assistance from it.
This case dealt with two different issues: firstly, can an entrepreneur who owns a business purchase a second business for the purpose of developing and expanding the existing business, and count the purchase monies as "investment", as per the requirements of the Tier 1 Entrepreneur Immigration Rules? The Rules rather seemed to suggest that the answer to this question might be No.
And, secondly, if the aspiring Tier 1 Entrepreneur is interviewed by the decision-making official in connection with their application but the interview is deemed to be unfair or oppressive does this make a refusal decision unlawful if it is based on that interview?
On the second issue the Tribunal had no doubt: Yes, it does. Mr Anjum’s interview obviously was not very good. We could not help sniggering at some parts of the Tribunal’s judgement, eg: "It is also clear that around the middle of the interview the Applicant was reproached by the ECO for ‘flicking through’ a copy of his Business Plan and desisted as a result. This is suggestive of an approach which was unfriendly and an atmosphere of discomfort."
Yes, indeed it was, and it is about time that interviewing officers were subjected to criticism about this sort of thing. And the Tribunal also pointed out that Mr Anjum had not been given the opportunity to address inconsistencies that had arisen during the course of the interview. Indeed "He was not invited to comment upon, correct or amplify any of the responses recorded."
This makes engaging reading for anyone who has ever had such an interview or who works with clients who have. If interviewing officers are going to be held to account in this way, does it presage a higher standard of interviewing in future?
Well, we can but hope, but in any event Mr Anjum’s refusal decision was quashed, partly because of the unsatisfactory interview, and the decision will have to be taken again. As the Tribunal rather formally put it: "An immigration interview may be unfair, thereby rendering the resulting decision unlawful, where inflexible structural adherence to prepared questions excludes the spontaneity necessary to repeat or clarify obscure questions and/or probe or elucidate answers given."
The first issue was more mechanical. The Upper Tribunal said that the UKVI decision-maker had not read the relevant Rule correctly. The Rule excluded from the definition of "investment" monies spent in purchasing the
business from a previous owner, where the money went to that owner rather than into the business (which of course it usually would). But, as the Tribunal pointed out, Mr Anjum had not purchased the
business from a previous owner, he had in fact purchased a
business from a previous owner - which of course is not the same thing at all. He already had the
business and was augmenting it with another business and therefore he had not offended the Rule. We hope this is clear.
So again Mr Anjum triumphed, but there is a postscript to this. Looking casually at the latest version of the Tier 1 Entrepreneur Immigration Rules we suddenly noticed a subtle change in the wording, to the effect that excluded from "investment" is "Buying any business from a previous owner where the money ultimately goes to that previous owner…".
This change was sneakily introduced in the last Statement of Changes last December, so somebody in Mr Anjum’s situation in future will presumably not succeed.
Well, at least we have an independent judiciary in this country, which is not scared to take on the UKVI when it thinks that it is in the wrong. But the fact is - and indeed as we have seen - that the Home Secretary can change the Immigration Rules with extreme ease.