Tier 1 Entrepreneur refusals - new evidence

21 August 2019

The Tier 1 Entrepreneur visa route is now closed to new entrants but still exists for those already in the system. So there are still quite a lot of ongoing matters, including a few old ones.

One really old one is the case of "Kabir", which was recently heard in the Court of Appeal.

The Home Office is sometimes accused of being very slow; cases vary but certainly in some instances the criticism is justified. Mr Kabir, a Bangladeshi national, applied to switch from a Tier 4 Student visa to a Tier 1 Entrepreneur visa. The court tells us that he made the application in December 2012. In the application he included documents from a Bangladeshi bank which purported to show that a third party was providing investment funds for him.

It somehow happened that it was not until February 2015 that the Home Office seriously investigated the application. They wrote to the bank asking if the documents were genuine. The bank wrote back and said that they were not.

Unsurprisingly the Home Office refused Mr Kabir’s application - but not until June 2015 - and they also accused him of deception for submitting false documents. Mr Kabir was a bit upset. In those days (but not now - see below) there was the right of appeal to the First-Tier Immigration Tribunal, and he appealed.

And in the appeal he submitted fresh evidence from the bank in question which indicated that in fact the original evidence from the bank was genuine and that the contention that it had not been was a mistake.

This sounds as though it is getting a bit complicated, but it gradually got worse. When the appeal hearing happened (we are now in June 2016) the Home Office asked for an adjournment so that they could test the genuineness of this new evidence. The adjournment was granted.

And now the Home Office came to the conclusion that the new evidence was not genuine either. The Home Office produced a "document verification report" to this effect. A copy of this crucial document was sent to Mr Kabir’s solicitors but it did not get to the right person in the solicitor’s firm until much too late.

When the new appeal hearing happened (now October 2016) Mr Kabir’s solicitor frankly told the Tribunal that he had seen the DVR for the first time that day and he asked for another adjournment so that they could try and get yet more evidence about it.

But the Tribunal would not grant another adjournment. It was, the judge said, the fault of the solicitor’s firm that matters had not been dealt with expeditiously. The case proceeded and, again unsurprisingly, Mr Kabir lost.

But Mr Kabir now appealed to the Upper Immigration Tribunal, on the grounds that it was wrong of the First-Tier Tribunal not to have granted the adjournment. And Mr Kabir said that he now had yet more evidence from the bank to support his case.

The Upper Tribunal took the view (now July 2017) that it was not wrong for the adjournment request to have been refused, and also that the most recent evidence was inadmissible because correct procedure for production of new evidence had not been followed. Therefore they did not consider it.

Mr Kabir then appealed to the Court of Appeal, which - and after some detailed submissions and analysis - went along with the Upper Tribunal’s opinion, and its decision was published in July 2019.

So Mr Kabir was ultimately unsuccessful in his long journey via the Home Office and the courts.

A story exactly like Mr Kabir’s could not happen anymore, because the right of appeal to the Tribunal for unsuccessful Tier 1 Entrepreneurs - and for points-based system migrants generally - has now been removed. Now there is Administrative Review with the Home Office and, potentially, Judicial Review with the Upper Tribunal, which handles both appeals and Judicial Review matters. But Judicial Review cases can sometimes get similarly complicated.

In any event the legal fact is that for some years now there have restrictions on the production of new evidence for unsuccessful points-based system migrants. To put it short, if you have forgotten or otherwise failed to include an important document with your application you may be in big trouble.

Generally, you may only be able to include new evidence if (as indeed Mr Kabir was) you have been accused of deception. But even in this case - as we saw - there are rules and restrictions that have to be engaged with.

Mr Kabir’s case revealed what looked rather like some sort of war of attrition from the Home Office. They took so long to do everything that the average person might well have been inclined just to give up.

But it also revealed that a mistake by your lawyers - even a simple administrative one - can be fatal to your case. If you find yourself embroiled with the immigration judiciary you are well advised to get a competent lawyer on your side.

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