Tier 1 Entrepreneurs - human rights private life?

05 April 2018

The question is, if a migrant runs a business in the UK and they would like to acquire Tier 1 Entrepreneur status, could their application for that status be assisted by a human rights argument? Specifically, to the effect that running the business contributes towards their "private life", as per Article 8 of the European Convention on Human Rights.

This was indeed the question that recently ended up before the Court of Appeal in a case called "Onwuje".

The question sounds rather technical and to an extent it is. Article 8 of the ECHR is the article that protects family life and private life. We know more or less what family life means but "private life" is a bit more difficult to pin down. Commonly given examples of private life, within the legal meaning, are: your job, your studies, your social network, your religious membership and activities, your charitable activities.

But the European Court of Human Rights (probably a good source of authority) has stated very clearly that no particular limits can be put on the definition. It might therefore make sense to define human rights private life as everything that binds a person to or integrates a person into the UK that is not connected with family.

In any event, what happened was this. Mr Onwuje, a Nigerian national, came to the UK with his wife, first of all as a student, and later on they had children. Eventually he applied to the Home Office to switch his leave to leave as a Tier 1 Entrepreneur. When he applied he had already set up and was running a business, which was an employment agency in the health and care sector.

The Home Office refused the application but - under the rules in place at that time, 2014 - he had the right of appeal to the First-Tier Tribunal. He duly appealed, and he won. This was, you might say, quite remarkable: his case was presented on the basis that, although he did not meet the various detailed requirements of the relevant Immigration Rules (ie the substantive law that governs Tier 1 Entrepreneur visa applications), he nonetheless should succeed on an Article 8 human rights private life basis.

This decision must have both shocked and infuriated the Home Office. One can just imagine how, in the Home Office mind, the floodgates had just been opened to loads of migrants who do not meet the rules but have a persuasive human rights argument up their sleeves.

The Home Office not entirely surprisingly appealed to the Upper Tribunal (the upper tier of the Tribunal scheme). The Upper Tribunal reversed the First-Tier Tribunal’s decision, which they said had been wrong. But then Mr Onwuje applied to appeal to the Court of Appeal and he was granted permission to appeal. It was, he said (or at least his barrister did) that it was the Upper Tribunal that had got it wrong.

The Court of Appeal was not entirely complimentary to either the judge at the First-Tier Tribunal or the judge at the Upper Tribunal. The FTT judge had said in their decision that "The focus of this appeal regards the difference between formalism and substance". This struck an inappropriate note. The detailed "formalism" of the Immigration Rules should not so casually be disparaged. (They have often been criticised in the courts for their complexity, but of course "the law is the law".)

And there were other problems with the FTT decision as well. The judge had gone out of their way to heap copious praise on Mr Onwuje and the contribution that his business had made to the UK, but this was not really the point. And, as the Court of Appeal put it "The need for an effective immigration system is not a mere ‘routine argument’".

But the court was not entirely impressed with the Upper Tribunal’s decision either. Some of the legal reasoning was not good. And the court (in the person of Lord Justice Underhill) made something clear that the Upper Tribunal had not fully addressed:

"… I have no difficulty with the proposition that in some circumstances an entrepreneur’s ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of article 8"

But despite this positive note, the court upheld the Upper Tribunal’s decision, although they substituted their own reasoning. In other words, it came to the same conclusion as the Upper Tribunal but with different reasons behind it. Mr Onwuje’s running of the business did not constitute a sufficiently strong factor for him to succeed on an Article 8 human rights basis.

Where does this leave us? The court’s finding that running a business is potentially part of human rights private life is surely right, and now we have it clearly in black and white. It did not help Mr Onwuje but perhaps it just might help other migrants in future.

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