Upper Tribunal (Immigration and asylum chamber), 2017-02-28, JR/03717/2016
| Jurisdiction | UK Non-devolved |
| Date | 28 February 2017 |
| Published date | 04 December 2017 |
| Hearing Date | 13 December 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/03717/2016 |
Case Number: JR/3717/2016
IN THE UPPER TRIBUNAL
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
JR/3717/2016
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 13 December 2016
the queen (ON THE application OF)
MOHAMMAD HARIS PARACHA
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE RIMINGTON
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Mr Z Malik, Counsel instructed by AWS Solicitors appeared on behalf of the Applicant.
Mr J Anderson, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
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APPLICATION FOR PERMISSION
JUDGMENT
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JUDGE RIMINGTON: The applicant in this judicial review claim, with the permission of Judge Kamara, challenges the Secretary of State’s decision of 5 February 2016, an administrative review which maintained an earlier decision of 22 December 2015 to refuse his application for leave to remain as a Tier 1 (Entrepreneur) Migrant.
Background
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The applicant is a citizen of Pakistan born on 7 September 1987 and was granted leave to enter the United Kingdom as a Tier 1 (Entrepreneur) Migrant on 14 June 2012 until 14 October 2015. He was engaged with his family business, Kafi Group Pakistan established in 1982 which has, according to the applicant grown to be a very large enterprise. The company deals in various commodity exports such as rice wheat and sugar and supplies a variety of companies including superstores in the United Kingdom.
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The applicant, made an application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 9 November 2015 and that application was refused under the Points Based System by the Secretary of State on 22 December 2015 for two reasons. First he was not entitled to points for the “required investment made in the UK business” because the accounts submitted by him did not show the investment made by him in his own name as required by paragraph 46-SD (b) of Appendix A to the Immigration Rules. Secondly, he was not entitled to any points for “creation of jobs in the UK” because the evidence submitted by him in this respect did not comply with the requirements in paragraph 46 – SD (h) of Appendix A to the Immigration Rules.
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The judicial review claim was issued on 5 April 2016 on four grounds.
Ground (i) – the Secretary of State acted unlawfully in holding that the requirement of paragraph 46-SD (b) of Appendix A to the Immigration Rules was not met.
Ground (ii) - the Secretary of State acted unlawfully in failing to have any regard to her evidential flexibility policy.
Ground (iii) - the Secretary of State acted contrary to paragraph 245AA of the Immigration Rules.
Ground (iv) - the Secretary of State’s failure to consider departing from the Immigration Rules was unlawful in public law.
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For clarity I have set out a section of the Secretary of State’s decision of 22 December 2015:
“You have claimed points on the basis that you have created the equivalent of two new full-time paid jobs for people settled in the UK and that these jobs have each existed for at least 12 months.
As evidence of this, you have supplied: accountant’s letter, identity documents, P45, P11, wage slips, and RTI documents.
Paragraph 46-SD(h) of Appendix A of the Immigration Rules lists the specified that is required to demonstrate the creation of jobs.
The evidence that you have submitted above is not acceptable because
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Evelyn Marie Jane Osborne 226 hours calculated
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Mosbah Abdes Salam 1170 hours were calculated from the wage slips but could not be counted as no hourly rate was provided as required under paragraph 46-SD(h)(iii)
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Uzma Syed 1020.76 hours calculated (July 0 ct 14 wage slips/RTI missing)
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Sheree Danielle Garside 0 hours calculated as no wage slips were supplied as required under 46SD(h)(ii)
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Mark Philip Day no hours were calculated as no identity documents were provided as required under paragraph 46-SD(iv) of the Immigration Rules
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Ayesha Khan Lodhi no hours were calculated as no identity documents were provided as required under paragraph 46-SD (iv) of the Immigration Rules.
Therefore, the required 3120 hours worked over a 24 month period was not met.
We have therefore been unable to award points for Attributes in accordance with Appendix A.
Therefore you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application for Leave to Remain as a Tier 1 (Entrepreneur) Migrant under paragraph 245DD of the Immigration Rules as you do not meet the requirement at paragraph 245DD(b) and under Appendix A.
In making the decision to refuse your application we have considered paragraph 245AA which explains the actions that we may take if specified documents are not submitted with an application.
The Immigration Rules for evidential flexibility only cover missing documents from a sequence of documents that have been provided with the application, such as one bank statement missing from a series, or missing information from documents which have been provided. Therefore in line with paragraph 245AA(b), as the missing specified document does not fall within a series of documents that you have provided, we have reached a decision based on the evidence provided in the application.”
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There followed the Administrative Review decision under challenge. The relevant Immigration Rules were indeed set out in the administrative review decision and paragraph 46-SD(h) of the Immigration Rules a that time read as follows:
“(h) If the appellant is required to score points for job creation in Table 5 or 6, he must provide the following:
(i) evidence to show the applicant is reporting Pay As You Earn (PAYE) income tax appropriately to HM Revenue & Customs (HMRC), such as printouts of Employee Payment Records, Real Time-Full Payment Submissions (either a series of individual monthly submissions including the first submission or summaries), or original HM Revenue & Customs P45 or P46, which either together or individually show the total payments made to the settled workers, as well as the tax deducted and date which the started work with the applicant’s business; and
(ii) duplicate payslips or wage slips for each settled worker for whom points are being claimed, covering the full period of the employment for which points are being claimed; and
(iii) confirmation of the hourly rate for each settled worker used to claim points, including any changes in the hourly rate and the dates of the changes, enabling calculation of the hours of work created for each settled worker; and
(iv) documents which show the employee is a settled worker such as the biometric data page of a passport containing photograph and personal details of the employee, and where the worker is an overseas national, a copy of any UK Government stamp or endorsement within the passport, or the employees full birth certificate, showing the name of at least one parent; and
(v) if the applicant was a director of a company, a printout from Companies House of the company’s filing history page and of the applicant’s personal appointments history, and showing the date of his appointment as a director of that company, to confirm that he was a director of the company that employed the settled worker at the time that the settled worker was employed; or
(vi) if the applicant was self-employed, the specified documents in (c) above showing the dates that the applicant became self-employed, the names on the Employee Payment Record and bank account, and the address of the business;
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The Administrative Review decision of 5 February 2016 considered the points raised in the Administrative Review application under the heading “claimed misapplication of the rules or policy”. This decision also upheld the rejection of the application under paragraph 46-SD(b) and maintained the refusal under paragraph 46-SD(h) of the Immigration Rules setting out as follows:
“In your Administrative Review application you have stated that you have provided all the possible specified evidence. However, as stated in the original refusal letter, you were missing numerous specified documents in relation to your employees.
On this issue in your Administrative Review application you have stated that some of the missing specified documents arose from your unsatisfactory working relationship with your employee Miss Aysha Khan Lodhi. However, the onus lies with you therefore, it is your responsibility to manage your Leave to Remain application, should you wish do this throughout your...
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