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All’s Fair in Love, War and Tier 1 Entrepreneur Visa Interviews

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R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur – business expansion – fairness generally) [2017] UKUT 00406 (IAC)

OTS Solicitors is highly ranked in the Legal 500 and one of the most respected, successful niche law firms in London, specialising in Immigration, commercial, civil litigation, Employment, and family law.

For talented, smart entrepreneurs, the United Kingdom offers a wealth of opportunity, with its easy proximity to Europe, the Middle East and the east coast of America. Setting up a business is straightforward, corporation tax is low, and the population is well-educated and highly-skilled.

But getting a Tier 1 Entrepreneur Visa can be a long, arduous process for applicants who do not have the right professional support. And the recent case of R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur – business expansion – fairness generally) illustrates serious flaws in the Genuine entrepreneur test process.

Even the best Immigration solicitors specialising in business immigration law are continually frustrated by the often unfair and unprofessional way Entry Clearance Officers (ECO) conduct Tier 1 Entrepreneur Visa interviews. Most Entrepreneur Visa route applicants are required to attend an interview as part of the Genuine entrepreneur Test (although our clients have, on occasion, been able to bypass this requirement based on the strength of the business plan we create with them). The Anjum case, decided in the Upper Tribunal of the Immigration and Asylum Chamber, has at last publicly shown the considerable failings of the process.

The facts of the case

Mr Anjum, a Pakistani national, brought a judicial review challenge against the ECO of Islamabad on the grounds of procedural unfairness and misconstruction/misapplication of the relevant provisions of the Immigration Rules.

The ECO refused the Mr Anjum’s application because he did not meet the requirements laid out in Paragraph 245D(c) of the Immigration Rules. This reads:

“(c) Where paragraphs 245D to 245DF and paragraphs 35 to 53 of Appendix A, refer to money remaining available to the applicant until such time as it is spent for the purposes of his business or businesses:

  1. 1. (i) ‘Available’ means that the funds are:
    1. 1. in the applicant’s own possession,
    2. 2. in the financial accounts of a UK business which he is running as a member of a partnership or as a director, or
    3. 3. available from the third party or parties named in the application under the terms of the declaration(s) referred to in paragraph 41-SD(b) of Appendix A.
  2. 2. (ii) ‘Invested’ means that the funds have been invested into a business or businesses which the applicant is running as self-employed or as a director or member of a partnership. ‘Invested’ or ‘spent’ excludes spending on:
    1. 1. the applicant’s own remuneration,
    2. 2. buying the business from a previous owner, where the money ultimately goes to that previous owner (irrespective of whether it is received or held directly or indirectly by that previous owner) rather than into the business being purchased (This applies regardless of whether the money is channelled through the business en route to the previous owner, for example by means of the applicant or business purchasing ‘goodwill’ or other assets which were previously part of the business.),
    3. 3. investing in businesses, other than those which the applicant is running as self-employed or as a director, and
    4. 4. any spending which is not directly for the purpose of establishing or running the applicant’s own business or businesses.”

In addition, based on the interview, the ECO concluded Mr Anjum:

  • was not confident in the contents of his business plan as he kept referring to it during the interview
  • demonstrated he was not consistent with his financial forecasting because the figures he told the ECO during the interview differed from those laid out in the business plan

The ECO officer concluded:

“Given all of this, I am not satisfied that the funds you hold are genuinely available to you, that you genuinely intend to invest the money in a business or businesses in the UK or that you genuinely intend to establish or take over a business or businesses in the UK.”

The rules of procedural fairness as a ground for judicial review

Mr Justice McCloskey referred to the definition of what constituted procedural fairness laid down by Lord Mustill in R v SSHD, ex parte Doody and Others [1994] 1 AC 531.

“My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.’”

The court found that the applicant already had an existing online business, a fact that was clear in his business plan. However, the ECO misinterpreted the applicant’s business plan and his answers during the interview. This led to the conclusion that Mr Anjum planned to undertake a prohibited activity under Paragraph 245D(c)(2)(ii)(2) – using part of the £200,000 to buy a business. The court clearly showed this was untrue. The applicant already owned an eBay business, and he planned to use £50,000 to take over another business to “add to and amalgamate” with his existing enterprise. Justice McCuskey noted that a “striking” feature of the Genuine entrepreneur Test interview was the applicant was not asked “any questions about the content of his business plan and did not attempt correlate any of the applicant’s replies to the latter.”

It is clear from examining the questions asked, had the ECO referred to the business plan, the outcome of the interview may have been very different.

The court also viewed the following question unfair and confusing.

  1. Q. “What is your projective [sic] turnover for 2016?
  1. A. £300,350 from one shop which I am currently running”.

Justice McCloskey reasoned that the relevant section of the business plan did not refer to the language of “turnover” (the interview was conducted through an interpreter which makes the need for precise language even more imperative).

The court ordered the original ECO decision to the quashed and the decision to be re-examined, taking into account the comments made in the judgment.

How can OTS assist with Genuine entrepreneur Test Interviews?

As a highly ranked Legal 500 law firm, OTS Solicitors have a robust reputation of providing the best legal advice and representation regarding Tier 1 Entrepreneur Visas. We guide clients through the entire process, from the initial application through to helping them write a strong business plan (sometimes enough on its own to circumvent the need for a Home Office interview). If an interview is required, our Immigration lawyers will provide the best guidance as to how to give concise, articulate, honest answers to the questions which may be asked. We will take the time to run through mock interviews with you, so you feel completely confident when questioned by an ECO.

If you are subjected to questions or a process that may be deemed procedurally unfair, we can challenge the Home Office on your behalf.

It is important to recognise that ECOs are not necessarily trained in business. This can lead to mistakes being made and commercial realities being ignored. Therefore, it is crucial to obtained experienced legal advice from the very start of the Tier 1 Entrepreneur Visa application process.

OTS Solicitors is one of the most respected Immigration law firms in London and is highly ranked in the Legal 500. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We have a wealth of experience advising entrepreneurs and their families applying for a Tier 1 Entrepreneur Visa.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

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