Upper Tribunal (Immigration and asylum chamber), 2019-06-18, JR/04568/2018
| Jurisdiction | UK Non-devolved |
| Date | 18 June 2019 |
| Published date | 21 June 2019 |
| Hearing Date | 09 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/04568/2018 |
Case Number: JR/4568/2019
IAC-FH-LW-V2
IN THE UPPER TRIBUNAL
JR/04568/2018
Field House,
Breams Buildings
London
EC4A 1WR
9 April 2019
The QUEEN
(ON The application OF)
danish taj
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE ALLEN
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
Mr Z Malik, instructed by Pioneer Solicitors appeared on behalf of the Applicant.
Mr N Ostrowski, instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
JUDGE allen: The applicant seeks judicial review of a decision of the Secretary of State dated 5 April 2018 refusing his application for leave to remain as a Tier 1 (Entrepreneur) Migrant. The respondent was not satisfied that the applicant had met the requirements to enable him to be awarded 10 points under Appendix C of the Immigration Rules and refused his application as it was decided he had not met the genuineness test of paragraph 245DD(k) when assessing on the balance of probabilities the points listed at paragraph 245DD(l) of HC 395.
1. Mr Taj had previously been granted leave to enter the United Kingdom as a Tier 4 (General) Student, on 18 December 2009. That leave was until 17 February 2011. On 24 February 2011 he was granted leave to remain in the United Kingdom as a Tier 4 (General) Student until 23 November 2011, and on 15 December 2011 he was granted leave to remain in the United Kingdom as a Tier 1 (Post-Study) Migrant until 15 December 2013. Subsequently, on 26 February 2014 he was granted leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant until 26 February 2017. He made the application which led to the decision under challenge on 22 February 2017.
2. In the decision letter the respondent set out various concerns under the heading “Non-Points Scoring Reasons for Refusal”. The respondent was not satisfied that the applicant had established, taken over or become a director of one or more genuine businesses in the UK and had genuinely operated that business; he was not satisfied that he had genuinely invested the money referred to in Table 5 of Appendix A into one or more genuine businesses in the United Kingdom, that he intended to continue operating one or more businesses in the United Kingdom and did not intend to take employment other than under the terms of paragraph 245DE.
3. The decision-maker set out the seven criteria noted down at paragraph 245DD(l) of HC 395, which had been considered it was said, concentrating particularly on items (i), (iv) and (v).
4. With regard to the credibility of the applicant’s business activity in the United Kingdom, the respondent noted that he had named two clients, Avid Support Limited and Core Atlantic Limited. He had said that for Core Atlantic Limited he set strategies, aims and priorities and held progress and review and provided internal and external audits and also provided marketing and business plans. For Avid Support it was stated that he did web design, market research and action plans.
5. Concerns were raised due to the fact that no details of Avid Support Limited could be found at Companies House matching the details stated on his contract with them or any details he had provided about them during the interview. It was noted that there was a company named Avid Support Ltd listed at Companies House but their details differed significantly from the details shown on his contract. It was noted that their address on the contract was said to be 414B, 4th Floor, Victoria House, Victoria Road, Chelmsford, CM1 1JR, and the contract was signed by Imad Masood. The address for “Avid Support Ltd” at Companies House showed as being 11 Brisbane Road, Ilford, Essex, IG1 4SR and the director was shown as Jawad Bhatti. In addition to this, Companies House showed that Avid Support Ltd had not had any other trading addresses since it was incorporated on 10 June 2016. It was said that the fact that the above details differed in such a way raised concerns as to the credibility of his contract and the credibility of his business activity in the United Kingdom as a whole.
6. The point was also made that there was only an Avid Support Ltd listed at Companies House and the claimed client Avid Support Limited did not appear to be registered and this was said to raise further concerns regarding the genuineness of the contract.
7. In addition the respondent said that he had been unable to find any other online presence for Avid Support Limited such as a website, and the fact that the applicant claimed to have conducted web design for them but there was no evidence of them having a web presence further added to the existing concerns.
8. He had been asked to provide details of any market research he had carried out prior to investing in his business. He said that he had researched local businesses such as Core Atlantic Limited to find out what they needed and how he could provide it. When asked the results of his market research he said as follows: “Very positive especially after brexit (sic). All companies are looking for staff. Core Atlantic Ltd very short of staff”.
9. This response was regarded as contrasting with previous responses he had provided and also the contracts he had provided with regard to the nature of the work he claimed to conduct. It was said that his response gave the impression that he recruited staff for their business which raised concerns as this called into question his earlier responses provided with regard to the type of work carried out for Core Atlantic business.
10. A further point of concern was that the visiting officer at the interview had observed that there was no visible sign at the premises displaying his company name. The applicant was told by the officer that Companies House legislation said that he was required to erect a sign showing his company name and his registered company address and wherever his business operated. He was then asked to explain why he had not chosen to comply with this requirement to which he replied by saying he was waiting for a sign to be put up but was not sure when this would be. His apparent lack of awareness of the relevant legislation and apparent lack of urgency to erect a sign further added to existing concerns regarding the credibility of his business operations.
11. Under (v) when he gave details as to where his employees worked from he said that they mostly worked from his business premises but occasionally worked from home. He was asked to provide details regarding any health and safety requirements he had in place at his business premises to which he replied that he had none. This was said to add to existing concerns, as it would be a mandatory requirement for any employer in the United Kingdom and his little awareness of it raised concerns as to the genuineness of his claimed job creation.
12. A final concern was that the interviewing officer observed on visiting the business premises that the office was very small and questioned whether it was feasible that two employees and a director could realistically conduct work in such a space. This was regarded as casting further doubt upon the credibility of his job creation and business activity in the United Kingdom.
13. Permission to challenge this decision was refused on the papers by Judge Kekić but subsequently granted following an oral hearing by Judge Kopieczek.
14. In essence the challenge is made first on the basis that the respondent’s decision is procedurally unfair; and secondly, that it is irrational. These points were developed in the skeleton arguments and in submissions before me, and I shall address the points made below.
15. There was a preliminary issue raised by Mr Ostrowski concerning the amended witness statement which had been put in by the applicant. It was accepted that permission had been granted by a Tribunal lawyer to admit the amended witness statement, but it was argued that the evidence was interwoven with submissions and comment which was entirely improper in the statement and also there was no statement of truth as required by the CPR.
16. Mr Malik agreed that there were submissions and comments in the statement and that was improper, but there was no application to set aside the lawyer’s decision and he was content if it were admitted for little weight to be attached to it.
17. I stated that the evidence had been admitted by the Upper Tribunal lawyer, and there had been no application to set it aside and it would remain part of the relevant documents in the case, though bearing in mind in particular the fact that it was not signed contrary to CPR requirements I would attach little weight to it.
Submissions
18. In his submissions Mr Malik noted in reference to the interview notes that there were misspellings, for example in Core Atlantic’s name which was spelt as “Gold” and in relation to Avid Support: “Support” was written as “Sport”. This was important with regard to the online presence issue. There were only follow-up questions at questions 8 and 9. Question 15 concerning Core Atlantic and the search for employees issue was linked to question 14 and was concerned with the market research carried out before the business was set up. The applicant had given candid...
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