Tier 1 Investor schemes - Beware

In the wake of the General Election result it looks as though Brexit is going to happen soon and that the Ankara Agreement (which is an agreement made under EU law) may soon no longer be with us. This prompts us to remind you that if you are thinking of making an application as a businessperson under the Ankara Agreement now is the time.

But for the moment at any rate the Ankara Agreement is still here and the courts are still making decisions about it.

The High Court recently heard a case (called “Karagul and others”) which was a joint action by four Turkish nationals, all of whom had been refused leave to remain visas under the Ankara Agreement businessperson scheme.

In every case they had applied for Administrative Review of the refusal decisions. Administrative Review is a process carried out by Home Office caseworkers whereby decisions made by other Home Office caseworkers are checked for errors.

The Administrative Review applications had also been unsuccessful and the disgruntled applicants had gone for Judicial Review, in this case before the High Court. Judicial Review is a much sterner and more rigorous process than Administrative Review. If we may put it this way, a High Court judge is a different kind of legal animal from a Home Office caseworker.

The case was brought on two different bases: firstly, that Administrative Review was not a sufficiently “effective” remedy in terms of EU law and, secondly, that the individual decisions had been unfairly arrived at; or, to put it more formally, that the decisions “were in breach of common law fairness standards”.

Regarding the first issue, well, everybody knows that Administrative Review is, to put it technically, “not really great”. If, as in this situation, Organisation A is checking decisions made by Organisation A, then there is not a clearly independent decision-making process. And experience shows that the legal knowledge of Home Office caseworkers is not always very profound.

But, on the other hand, if Administrative Review is unsuccessful there is always Judicial Review, which can hopefully correct any inadequacies in the Administrative Review process.

The High Court delicately stated that “…it does not seem to work as well and as efficiently as one might hope”. But did this mean that it was an ineffective remedy in terms of EU law? The court thought not: the process was not deemed to be sufficiently dysfunctional to render it so: “…there is no breach of the principle of effectiveness…”.

But the common law fairness issue had a bit more meat in it. The businesspeople had had their visa applications refused on the principles, variously, that they did not have a “genuine intention” or a “genuine wish” to set up their businesses.

A conclusion like this is rather damning: it indicates that the Home Office believes that the applicant is acting dishonestly, and that they are only applying under the Ankara Agreement as a way of staying in the UK by hook or by crook. Although the word “deception” was not used the implication seems to be that in fact there allegedly was deception and that the visa applications were refused on that basis.

So the question before the court was: Were the procedures adopted by the Home Office to arrive at such conclusions fair?

One issue that came strongly to the surface was that if the Home Office accuses – or by implication accuses – somebody of deception or dishonesty they should be given a full opportunity to address the accusation: eg by means of an interview, or at least an appropriate paper procedure.

But the refusal process had not in these cases offered either of these. None of the claimants had been interviewed in connection with their applications, and refused migrants who apply for Administrative Review are not entitled to submit any new documents with the application unless they have been specifically accused of deception, which in these cases they had not been. By not using a word such as “deception” the Home Office had, as it were, escaped from the requirement to allow the migrants to submit new documents to support their case, but such documents might provide relevant and important material. This sort of process, the court said, was “…highly likely to be unfair”.

So even if the Administrative Review process was not in itself sufficiently unsatisfactory to be unlawful, the lack of opportunity for the migrants in question to fully address the reasons for refusal might well be.

On the basis of established jurisprudence the court thus decided that the process in these cases had been “unfair” within the legal meaning. It quashed all four of the Home Office’s decisions and directed it to re-take the decisions, but this time on a lawful basis – presumably involving either an interview or an unfettered opportunity to provide documentary material.

This case is very interesting and potentially important. There is no reason why its reasoning should be confined to Ankara Agreement cases: various other visa types have the same refusal process and this dreaded word “genuine” often crops up.

If your visa application has been refused and you are faced with the possibility of applying for Administrative Review you might well benefit from some good legal help. Although it is not a particularly sophisticated legal process, a well-prepared application can stand you in good stead if your application is unsuccessful and you want to threaten the Home Office with Judicial Review.

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