[2005] UKAIT 142
- Case title: GC (Legitimate Expectation, Entry Clearance)
- Appellant name: GC
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Romania
- Judges: Mr P R Lane, Ms JE Coker
- Keywords Legitimate Expectation, Entry Clearance
The decision
ASYLUM AND IMMIGRATION TRIBUNAL
GC (legitimate expectation – entry clearance) (Romania) [2005] UKAIT 0142
THE IMMIGRATION ACTS
Heard at: Hatton Cross
On 25 May 2005
Determination Promulgated
13 June 2005
………………………………………
Before
Mr P R Lane (Senior Immigration Judge)
Ms J E Coker (Immigration Judge)
Between
Appellant
and
ENTRY CLEARANCE OFFICER – BUCHAREST
Respondent
Representation:
For the Appellant: Mr K Bhatoo, Counsel, instructed by
Messrs M J Solomon & Partners, Solicitors
For the Respondent: Mr M Vale, Home Office Presenting Officer.
DETERMINATION AND REASONS
The public interest in ensuring that persons subject to immigration control do not enter the United Kingdom on a false basis can prevent a person from relying on a claim of legitimate expectation so as to compel effect to be given to a representation that entry clearance would be granted to that person
1. The appellant, born on 28 January 1970, is a citizen of Romania. On 24 January 2004 he applied for entry clearance to the United Kingdom as a person intending to establish himself in business in this country under the provisions of the EC Association Agreement relating to Romania. On 29 September 2004 the Entry Clearance Officer, Bucharest refused the appellant's application on the basis that the appellant did not meet the requirements of paragraphs 212 to 214 of the Immigration Rules (HC 395). The appellant appealed against that decision on 15 October 2004. By reason of article 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005, that appeal, made to an Adjudicator and pending immediately before 4 April 2005, continues thereafter as an appeal to the Asylum and Immigration Tribunal.
Background to the Appeal
2. The Association Agreement relating to Romania is one of a number of such agreements made between the members of the European Union and various other European States. The Agreements provide a right of establishment for nationals of those other States, within the European Union. Nationals of the relevant States, when seeking to set up in business or as self-employed persons, must be treated no less favourably than nationals of the host State. The operation of the Agreements can be limited by national rules governing entry and residents in respect of a particular EU state, provided that those rules do not make it impossible or excessively difficult for the right of establishment to be exercised.
3. The United Kingdom's national rules include a requirement for prior entry clearance before applicants travel to the United Kingdom. As a result of arrangements between the Home Office and the Foreign and Commonwealth Office, Entry Clearance Officers in the past sought authorisation from the Immigration and Nationality Directorate of the Home Office for decisions on entry clearance in this category of case.
5. Paragraphs 212 to 214 of the Immigration Rules provide as follows:
"212. The requirements to be met by a person seeking leave to enter the United Kingdom to establish himself in business are that:
(i) he satisfies the requirements of either paragraph 213 or paragraph 214; and
(ii) the money he is putting into the business is under his control and sufficient to establish himself in business in the United Kingdom; and
(iii) until his business provides him with an income he will have sufficient additional funds to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and
(iv) his share of the profits of the business will be sufficient to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and
(v) he does not intend to supplement his business activities by taking or seeking employment in the United Kingdom other than his work for the business; and
(vi) he holds a valid entry clearance for entry in this capacity.
213. Where a person intends to establish himself in a company in the United Kingdom which he effectively controls he will need, in addition to meeting the requirements at paragraph 212, to show:
(i) that he is a national of Bulgaria or Romania; and
(ii) that he will have a controlling interest in the company; and
(iii) that he will be actively involved in the promotion and management of the company; and
(iv) that the company will be registered in the United Kingdom and be trading or providing services in the United Kingdom; and
(v) that the company will be the owner of the assets of the business; and
(vi) where he is taking over an existing company, a written statement of the terms on which he is to take over the business and audited accounts for the business for previous years.
214. Where a person intends to establish himself in self employment or in partnership in the United Kingdom he will need, in addition to meeting the requirements at 212 above, to show:
(i) that he is a national of Bulgaria or Romania; and
(ii) that he will be actively involved in trading or providing services on his own account or in partnership in the United Kingdom; and
(iii) that he, or he together with his partners, will be the owner of the assets of the business; and
(iv) in the case of a partnership, that his part in the business will not amount to a disguised employment; and
(v) where he is taking over or joining an existing business a written statement of the terms on which he is to take over or join the business and audited accounts for the business for previous years”.
6. The appellant made his application on the basis that he intended to work in the United Kingdom as a self-employed electrician. His application made its way to the General Group Managed Migration Directorate of the IND in Sheffield. On 19 February 2004, the IND wrote to the Entry Clearance Officer in Bucharest, requesting that the appellant be issued with an entry clearance. Enclosed with that letter was a further letter of the same date, written in English, and addressed to the appellant. This stated that "you have been issued with entry clearance as a self-employed person under the provisions of an EC Association Agreement".
7. On 30 March 2004, the Secretary of State for the Home Department announced a suspension of the consideration of all Association Agreement applications from Romania and Bulgaria, pending an enquiry into the way in which they were being handled. This followed publication on 25 March 2004 of a report by Mr Ken Sutton, dealing with allegations that followed disclosures made by a civil servant in the IND, that there had been a deliberate policy to relax the checks on Association Agreement applicants in the run up to EU Accession on 1 May 2004. On 30 March 2004, the Secretary of State for the Home Department asked Mr Sutton to examine further allegations that had been made by the Entry Clearance Manager in Bucharest, described by the Shadow Home Secretary in the House of Commons on that day "a massive, well organised migration scam that civil servants had drawn to the attention of the Home Office but the Minister did nothing about it" (Hansard, 30 March 2004, Column 1431).
8. The report of Mr Sutton's further investigation was published on 17 June 2004. The Sutton report's first key finding was that the Association Agreements had "been exploited in the sense that many Bulgarian and Romanian nationals have been helped to make applications to set them up in business or as self-employed in the UK. In effect, many applicants have been sold a service that includes pro-forma business plans. Through this technique, some legal representatives have helped many applicants to successfully present themselves, in person and in writing, in a way which has exaggerated their ability to meet the UK's national rules for setting up in business under this scheme, when it is likely that, in practice, their real purpose was simply seeking work in the UK whether formally in a self-employed or in a paid capacity" (paragraph 1.14).
9. As a result of this abuse, the Sutton report found that "there are now Bulgarian and Romanian nationals in the United Kingdom who are unlikely to have been able to demonstrate that they could successfully set up in business here if their applications had not been manufactured for them". For those in this category who had not yet been given indefinite leave to remain, the Sutton report concluded that, were its recommendations to be implemented, the IND would be able "to consider carefully whether they should be allowed to remain in the UK permanently or should be removed if they are not meeting the requirements of the Immigration Rules" (paragraph 1.16).
10. The report's second key finding was as follows:
"1.16 The second key finding is that officials handling ECAA applications have been sharply divided in their view of the relevant law. The period since 2001 in particular has been marked by a conflict between two approaches. Entry clearance staff in Sophia and Bucharest favoured an approach which, if adopted, would have meant that the majority of applicants would have been refused. Home Office staff in IND thought that refusals on that basis would be unsustainable in law and took an approach under which the majority of applicants were granted. The Home Office view prevailed – but the tension between the approaches continued and remains to be resolved."
11. The third key finding of the report flowed directly from the second such finding. Having taken legal advice, Mr Sutton concluded that "while the requirements for a successful application are not high, especially for self-employment in a lower skilled trade, the law would support a more questioning and challenging approach than has been taken in the past. The problem over the ECAA category can therefore be resolved through changes in the way decisions are taken which do not require primary legislation or amendment to the Agreements" (paragraph 1.17). Amongst the principal changes recommended in the report were the introduction of a more robust process for deciding applications for entry clearance, with those decisions being taken by entry clearance staff on the basis of the local enquiries, rather than by the Home Office working from the United Kingdom, the reinstatement of interviews for some or all applicants and better training for case workers in the assessment of financial accounts and other business documents.
12. As a consequence of the government's response to the Sutton report, the Entry Clearance Manager in Bucharest wrote on 10 September 2004 to the appellant. The appellant was told as follows:
"As you may be aware, the Home Secretary announced a suspension of consideration of ECAA applications on 30 March 2004, pending an enquiry into the handling of such applications. The report of the Inquiry was published on 17 June. The Home Secretary subsequently announced on 22 July that the service for entry clearance cases would resume on 1 September.
Although previously it may have been indicated that you were to be issued with entry clearance in the ECAA category, the conclusions of the Inquiry, and in particular the finding that a more robust interpretation of the law than that on which case workers in the UK were basing their recommendations would have been appropriate, and that there had been exploitation of the scheme, mean that the public interest requires that we now consider your application afresh."
13. As part of the consideration process, the appellant was invited to attend an interview at the Embassy in Bucharest on 29 September 2004. At that interview, the appellant told the interviewing officer that he was an engine locomotive electrician for the Romanian National Railways and that he intended to do electrical work in the United Kingdom, comprising "cable installation and plugs, installing and fix them" (question 5). He said he ran a company in Romania with his wife selling children's and women's clothing. Asked who had compiled the business plan which he had submitted in connection with his application, he replied "accountancy company with my ideas". The appellant said that he spoke English "not very good, but sometime I will go to school in England". Asked how he would conduct his business with limited knowledge of English, he said that "I know technical terms and I know what to do, I will go to a course as soon as I there" (question 15). He said that he would "also do an electricians course, this is necessary as currently there are some changes in the colours and the cables and voltage will change in the next year as well" (question 16). Asked where the course would be held, the interview record records "applicant looks blank". It was pointed out to the appellant that although he said he could read English, he could not say where the course would be held although the address was clearly on the letterhead of a document he apparently had before him. The appellant said that he did not have the qualification known as BS7671 but that this was not compulsory since the appellant intended to "work for private people, but in time I think I will need this for the big companies, I will improve my English first". The appellant said that whilst it would be difficult for him in the beginning, given his problems with English, he had a friend in the United Kingdom who had a business (question 21).
14. There then occurred the following exchange:
"22. What colours are the wires in a UK domestic appliance plug? Blue, Brown, and Yellow and Green, Red or Brown, Red or Blue.
23. Why have you given me so many different colours? They are the connections to the earth (Yellow and Green) and its either Brown or Black or Red or Blue that's why."
15. The appellant was also asked about his earnings in Romania and his business activities in that country. At the end of the interview, the interviewing officer produced a "summary", which reads as follows:
"The applicant elected to be interviewed throughout in Romanian, and showed no real understanding of questions in English, he states he will take English classes in UK, not beforehand. He states that his "friend" will pass on work to him but has provided no details of any such contracts or employment offers. As stated that he will do an electrical course in UK and provided details, despite stating that he could read English, he was unable to state where this course was, and this is a conversion course for tradesmen who already hold BS7671, which of course the applicant does not have. He and his wife run a clothing business here and produce funds of around £6,000, although company registration documentation seen, no documents of actual sales to substantiate funds. Has previously been refused visit EC's twice (with his wife).
The applicant provided vague and contradictory answers regarding the colours of the wires in a domestic appliance plug and I am not satisfied that he has the ability to provide services on his own account.
On 19 February 2004, the HO authorised issue of ECAA EC's to this applicant and his wife, but I am not prepared to exercise my discretion, and honour the issue of these EC's. Under the new interpretation of the law, this applicant and his wife do not qualify under the rule."
16. The refusal of entry clearance set out these matters in somewhat greater detail. The refusal noted that the appellant had been unable to provide business accounts or documentation detailing the business of selling clothing, nor had the appellant provided documentary evidence to support his assertion that that business brought a profit of £400 per month. The appellant was said to have been unable satisfactorily to explain the source of the funds he had and his funding balance was not consistent with statements he had made regarding his current income. The Entry Clearance Officer accordingly concluded that those funds had been credited to the appellant's account in an attempt to lend credibility to the appellant's application. The Entry Clearance Officer was not satisfied that the funds were in fact available to the appellant. The Entry Clearance Officer noted that the appellant had been unable to provide any documentation relating to the friend whom the appellant said he had in the United Kingdom and who was said to be similarly engaged as a self-employed electrician. Overall, the Entry Clearance Officer considered that the appellant displayed a clear lack of knowledge regarding arrangements for making his business in the United Kingdom a viable one. The Entry Clearance Officer accordingly concluded that the appellant had not shown a genuine and realistic intention to establish such a business in the United Kingdom. Nor did the Entry Clearance Officer consider that the appellant's proficiency in English would enable his business to grow at the proposed rate in the business plan.
The Appellant's Appeal
17. In the appellant's grounds of appeal dated 15 October 2004, he asserted that the Entry Clearance Officer had been shown documentation relating to the appellant's employment, and that of his wife, as well as letters from the Tax Authorities in Romania, concerning the appellant's business, and documents relating to the property in which the appellant lived. The appellant accepted that he did not speak "good enough English" but said he had told the Entry Clearance Officer that he was ready to learn more and that Romanians had gone to England without as much English as he had. As for the answers at interview regarding the wiring of a domestic plug, the appellant said it was possible that his answers had been incorrectly translated or recorded. He said he knew the colours "perfectly".
18. On 15 April 2005, the Tribunal adjourned the appeal in order to enable the parties to submit arguments concerning the issue of whether the appellant had a legitimate expectation that he would be granted entry clearance, as a result of the letter to him dated 19 February 2004. At the adjourned hearing on 25 May, the Tribunal had before it skeleton arguments from the appellant and the respondent.
Did the appellant have a legitimate expectation that Entry Clearance would be granted?
19. By section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002, one of the grounds of appeal to the Tribunal is "that the decision is otherwise not in accordance with the law". If the effect of the letter of 19 February 2004 was to create a legitimate expectation on the part of the appellant, that he would be given the entry clearance he needed to enter the United Kingdom, then the decision of 29 September 2004 to refuse to grant entry clearance may be said to be not in accordance with the law. This, we find, is the only legal basis upon which an argument based upon legitimate expectation may be advanced before us.
20. For the respondent, it was submitted that a person seeking to establish a legitimate expectation must show the following:
(a) a clear and unambiguous representation of a particular benefit being granted;
(b) detrimental reliance by the applicant upon that representation; and
(c) no overriding public interest which justifies defeating the expectation.
21. As the respondent's skeleton argument acknowledges however, paragraph (b) above is subject to a caveat. In R v Department of Education and Employment ex parte Begbie [1999] EWCA Civ 2100, Peter Gibson LJ accepted the appellant's submission in that case that it is not necessary for a person to have changed his position as a result of representations in order for a legitimate expectation to subsist. He nevertheless held (at paragraph 48 of the judgments) that "it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the Court finds unfairness in the defeating of a legitimate expectation."
22. In the present case, there is no evidence whatsoever that the appellant has relied on the representation contained in the letter of 11 February 2004. He may be disappointed by the eventual decision to refuse him entry clearance, notwithstanding the earlier letter, but that is all. Before the Tribunal, Mr Bhatoo asserted that the appellant had, in fact, sold his house on the strength of the letter and had been compelled to go to live with relatives. Mr Bhatoo readily conceded, however, that he had no evidence to put before the Tribunal to support this assertion.
23. The following point is also of significance. The actual grant of entry clearance consists of the placing of a visa in the appellant's passport. It is common ground that that was never done. Furthermore, there is no evidence that the appellant, at any stage between February 2004 and 10 September 2004, ever attended the Embassy in Bucharest, in order to secure that visa, or that he communicated with the Embassy in any other way, in order to get the Entry Clearance Officer to act in pursuance of the letter of 19 February.
24. Faced with a lack of evidence of reliance upon the letter of 19 February, Mr Bhatoo submitted that the decision in February 2004 had involved the appellant being granted a work permit and that it was therefore the case that entry clearance had to be granted by the Entry Clearance Officer in Bucharest. That submission is, however, incorrect. There is no indication that any work permit is required in a case of this kind, involving as it does an application by a person who proposes to be self-employed.
25, The Tribunal further finds that there is in any event a clear overriding public interest which would defeat any legitimate expectation the appellant might seek to assert. In Begbie, Laws LJ explored the scope of this principle at paragraphs 75 to 85 of the judgments. Essentially, Laws LJ held that the intensity of judicial review in cases of legitimate expectation will depend upon the extent to which the decision in question raises important matters of general policy affecting the public at large or a significant section of it. At paragraph 82, the learned Lord Justice held that "the more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the Court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."
26. In the present case, a finding that the appellant has a legitimate expectation to be granted entry clearance would require this Tribunal to venture into the very middle of the macro-political field described by Laws LJ in Begbie. The decision to reconsider the issue of entry clearance arose directly from the recommendations of the Sutton Inquiry and the acceptance by the Government of those recommendations. There was, we find, a very strong public interest in ensuring that persons, such as the appellant, who had not actually been given visas so as to enter the United Kingdom, should have their applications reassessed on the basis of the "more questioning and challenging approach" to the relevant Immigration Rules identified in the third key finding of the Report. To put the matter bluntly, the public has a strong and legitimate interest in seeing its Government take steps to ensure that people who are subject to immigration control do not enter the United Kingdom on a false basis.
27. The Tribunal accordingly finds that the decision in the present case cannot be said to be "not in accordance with the law".
Does the appellant meet the requirements of the Immigration Rules?
28. The Business Plan submitted by the appellant to the Entry Clearance Officer is an important part of the appellant's application. On any reading, it is highly unsatisfactory document, as the following examples make plain. On page 3, under the heading "details of business activities", we find this:
"Advertising and relying on word and mouth will achieve finding customers (sic). [The appellant] expects his initial customers to be private households because most of them accept to wait a little bit more to have the work done (sic). Increasing of incomes will be inevitably achieved when commercial buildings are served. But "Romeo Electrics" will offer services to owners of such buildings once he has maintained a considerable number of regular clients from the private households who will are (sic) supposed to guarantee his permanent income. For this purpose he will need to hire some qualified assistants who will help him with the vast accomplishment of the projects. Everything will be considered with the desires of the customers."
29. At page 4, under the heading "expansion of business services in the future" it is stated that the appellant's "long term plan for the Business is to expand his client base beyond London. Also he intends to broaden his services in order to have more customers. He plans to start repairing of electrical devices. The purpose of the company will be to service more well-to-do people, a fact which will surely have positive effect on the revenues of the company".
30. On the same page, under "strength of the business" it is stated that the appellant has received a very good education and experience in Romania. No details are given. It is then asserted that because of his qualification and experience, the appellant "will build up a reputable business to generate a lot of good will and contacts, which will be of immense value to the future development of his business. The fact that he will offer reasonable competitive prices of the services should attract more customers".
31. At page 5, somewhat belatedly, we find some details as to the qualifications and experience of the appellant. He is said to have graduated as a locomotive electro mechanic which would give him "extensive knowledge on electrical installations both domestic and industrial". The appellant is said to have changed his position in November 2001 when he began working as an installation assembly electrician and that since 2000 he has worked "on his own account servicing private clients as an electrician". No further details of that are given.
32. On page 7, reference is made to "available sub-contractors". It is stated that "should the need arise for taking on a larger number of sub-contractors [the appellant] intends to use his own connections and/or to advertise in order to find suitable and beneficial contracts". No details of any such connections are given. The Plan then goes on to say that in case the appellant faces "some initial difficulties in finding clients", he would work as a sub-contractor and that amongst such sub-contractors the appellant “may find his future partners for bigger projects".
33. On page 8, the "strategy of the company" is said to be "based on continual improvement of the material base". By "material base" it appears that the Plan is referring to "materials which have already proven their names and brands, which will attract a larger number of customers". On page 9, reference is made to the appellant's "contacts within the industry" who, it is said, "will help him to gain first hand knowledge of the electrical market requirements in London". No details of these contacts are given.
34. Overall, the Business Plan submitted by the appellant is, we find, both remarkably vague and shot-through with platitudinous and naive statements. It is very far from being a document that suggests a serious intent on the part of the appellant to leave his home country and engage as a self-employed electrical contractor in the United Kingdom. Indeed, we have to say that its submission – far from advancing the appellant's application – does the opposite.
35. Having considered the evidence in this case, the Tribunal finds that the appellant has entirely failed to show on balance that he meets the requirements of the Immigration Rules. Paragraph 212(2) requires the money which the appellant is putting into the business to be under his control and sufficient to establish himself in that business in the United Kingdom. Sub-paragraph (iii) provides that until the business provides an income the appellant must have sufficient additional funds to maintain and accommodate himself and his dependants (in the present case his wife) without recourse to employment or public funds. Sub-paragraph (iv) provides that the appellant's share of the profits of the business must be sufficient to maintain and accommodate himself and his dependants without recourse to employment or public funds. As the Entry Clearance Officer observed, significant deposits had been made into the appellant's bank account around the time of the application and no explanation for those payments has been provided. Nor were bank statements provided to show the financial position of the appellant over a sufficient period of time to enable an accurate picture of his finances to be obtained. No accounts of the Romanian business were provided so as to show profit and turnover over a period of time. There was inadequate evidence to prove that the sum of some £6,000 held by the appellant had been earned and saved by him and his wife.
36. An applicant's command of English is not in itself a determining feature. Having said that, the appellant's command of English was plainly very limited and the Entry Clearance Officer was entitled to observe that the appellant did not intend to undertake a language course before coming to the United Kingdom. The appellant was unable to read a letterhead upon which the address was given of a place in the United Kingdom, where the appellant said he intended to undertake a training course, following his admission to this country. It is frankly difficult to see how any person who intended to work, at least initially, as a domestic electrician would be able to communicate with prospective customers, if he had as limited a command of written and spoken English, as does the appellant.
37. As we have already found, the Business Plan in no sense suggests that the appellant genuinely intends to work as an electrician in a self-employed capacity in the United Kingdom. In addition, the appellant gave little explanation at his interview as to the nature of his business activities. He asserted at one point that replacing plug points in a house could cost between £25 and £30 and that one could charge £1,500 for rewiring a house. He did not, however, explain how he had arrived by these figures. Furthermore, the cost figures provided by the appellant at his interview did not relate to those contained in the Business Plan.
38, Quite apart from his difficulties with English, the appellant demonstrated what would be a frightening lack of knowledge about the wiring of a British plug if, as he would have had the Entry Clearance Officer and the Tribunal believe, he were truly intending to carry out electrical work in private households in the United Kingdom.
39. Overall, the Tribunal finds that the appellant has failed on balance to show that he meets the requirements of the Immigration Rules to be admitted on the basis contained in his application for Entry Clearance.
40. This appeal is dismissed.
P R Lane
Senior Immigration Judge
Approved for electronic distribution
GC (legitimate expectation – entry clearance) (Romania) [2005] UKAIT 0142
THE IMMIGRATION ACTS
Heard at: Hatton Cross
On 25 May 2005
Determination Promulgated
13 June 2005
………………………………………
Before
Mr P R Lane (Senior Immigration Judge)
Ms J E Coker (Immigration Judge)
Between
Appellant
and
ENTRY CLEARANCE OFFICER – BUCHAREST
Respondent
Representation:
For the Appellant: Mr K Bhatoo, Counsel, instructed by
Messrs M J Solomon & Partners, Solicitors
For the Respondent: Mr M Vale, Home Office Presenting Officer.
DETERMINATION AND REASONS
The public interest in ensuring that persons subject to immigration control do not enter the United Kingdom on a false basis can prevent a person from relying on a claim of legitimate expectation so as to compel effect to be given to a representation that entry clearance would be granted to that person
1. The appellant, born on 28 January 1970, is a citizen of Romania. On 24 January 2004 he applied for entry clearance to the United Kingdom as a person intending to establish himself in business in this country under the provisions of the EC Association Agreement relating to Romania. On 29 September 2004 the Entry Clearance Officer, Bucharest refused the appellant's application on the basis that the appellant did not meet the requirements of paragraphs 212 to 214 of the Immigration Rules (HC 395). The appellant appealed against that decision on 15 October 2004. By reason of article 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005, that appeal, made to an Adjudicator and pending immediately before 4 April 2005, continues thereafter as an appeal to the Asylum and Immigration Tribunal.
Background to the Appeal
2. The Association Agreement relating to Romania is one of a number of such agreements made between the members of the European Union and various other European States. The Agreements provide a right of establishment for nationals of those other States, within the European Union. Nationals of the relevant States, when seeking to set up in business or as self-employed persons, must be treated no less favourably than nationals of the host State. The operation of the Agreements can be limited by national rules governing entry and residents in respect of a particular EU state, provided that those rules do not make it impossible or excessively difficult for the right of establishment to be exercised.
3. The United Kingdom's national rules include a requirement for prior entry clearance before applicants travel to the United Kingdom. As a result of arrangements between the Home Office and the Foreign and Commonwealth Office, Entry Clearance Officers in the past sought authorisation from the Immigration and Nationality Directorate of the Home Office for decisions on entry clearance in this category of case.
5. Paragraphs 212 to 214 of the Immigration Rules provide as follows:
"212. The requirements to be met by a person seeking leave to enter the United Kingdom to establish himself in business are that:
(i) he satisfies the requirements of either paragraph 213 or paragraph 214; and
(ii) the money he is putting into the business is under his control and sufficient to establish himself in business in the United Kingdom; and
(iii) until his business provides him with an income he will have sufficient additional funds to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and
(iv) his share of the profits of the business will be sufficient to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and
(v) he does not intend to supplement his business activities by taking or seeking employment in the United Kingdom other than his work for the business; and
(vi) he holds a valid entry clearance for entry in this capacity.
213. Where a person intends to establish himself in a company in the United Kingdom which he effectively controls he will need, in addition to meeting the requirements at paragraph 212, to show:
(i) that he is a national of Bulgaria or Romania; and
(ii) that he will have a controlling interest in the company; and
(iii) that he will be actively involved in the promotion and management of the company; and
(iv) that the company will be registered in the United Kingdom and be trading or providing services in the United Kingdom; and
(v) that the company will be the owner of the assets of the business; and
(vi) where he is taking over an existing company, a written statement of the terms on which he is to take over the business and audited accounts for the business for previous years.
214. Where a person intends to establish himself in self employment or in partnership in the United Kingdom he will need, in addition to meeting the requirements at 212 above, to show:
(i) that he is a national of Bulgaria or Romania; and
(ii) that he will be actively involved in trading or providing services on his own account or in partnership in the United Kingdom; and
(iii) that he, or he together with his partners, will be the owner of the assets of the business; and
(iv) in the case of a partnership, that his part in the business will not amount to a disguised employment; and
(v) where he is taking over or joining an existing business a written statement of the terms on which he is to take over or join the business and audited accounts for the business for previous years”.
6. The appellant made his application on the basis that he intended to work in the United Kingdom as a self-employed electrician. His application made its way to the General Group Managed Migration Directorate of the IND in Sheffield. On 19 February 2004, the IND wrote to the Entry Clearance Officer in Bucharest, requesting that the appellant be issued with an entry clearance. Enclosed with that letter was a further letter of the same date, written in English, and addressed to the appellant. This stated that "you have been issued with entry clearance as a self-employed person under the provisions of an EC Association Agreement".
7. On 30 March 2004, the Secretary of State for the Home Department announced a suspension of the consideration of all Association Agreement applications from Romania and Bulgaria, pending an enquiry into the way in which they were being handled. This followed publication on 25 March 2004 of a report by Mr Ken Sutton, dealing with allegations that followed disclosures made by a civil servant in the IND, that there had been a deliberate policy to relax the checks on Association Agreement applicants in the run up to EU Accession on 1 May 2004. On 30 March 2004, the Secretary of State for the Home Department asked Mr Sutton to examine further allegations that had been made by the Entry Clearance Manager in Bucharest, described by the Shadow Home Secretary in the House of Commons on that day "a massive, well organised migration scam that civil servants had drawn to the attention of the Home Office but the Minister did nothing about it" (Hansard, 30 March 2004, Column 1431).
8. The report of Mr Sutton's further investigation was published on 17 June 2004. The Sutton report's first key finding was that the Association Agreements had "been exploited in the sense that many Bulgarian and Romanian nationals have been helped to make applications to set them up in business or as self-employed in the UK. In effect, many applicants have been sold a service that includes pro-forma business plans. Through this technique, some legal representatives have helped many applicants to successfully present themselves, in person and in writing, in a way which has exaggerated their ability to meet the UK's national rules for setting up in business under this scheme, when it is likely that, in practice, their real purpose was simply seeking work in the UK whether formally in a self-employed or in a paid capacity" (paragraph 1.14).
9. As a result of this abuse, the Sutton report found that "there are now Bulgarian and Romanian nationals in the United Kingdom who are unlikely to have been able to demonstrate that they could successfully set up in business here if their applications had not been manufactured for them". For those in this category who had not yet been given indefinite leave to remain, the Sutton report concluded that, were its recommendations to be implemented, the IND would be able "to consider carefully whether they should be allowed to remain in the UK permanently or should be removed if they are not meeting the requirements of the Immigration Rules" (paragraph 1.16).
10. The report's second key finding was as follows:
"1.16 The second key finding is that officials handling ECAA applications have been sharply divided in their view of the relevant law. The period since 2001 in particular has been marked by a conflict between two approaches. Entry clearance staff in Sophia and Bucharest favoured an approach which, if adopted, would have meant that the majority of applicants would have been refused. Home Office staff in IND thought that refusals on that basis would be unsustainable in law and took an approach under which the majority of applicants were granted. The Home Office view prevailed – but the tension between the approaches continued and remains to be resolved."
11. The third key finding of the report flowed directly from the second such finding. Having taken legal advice, Mr Sutton concluded that "while the requirements for a successful application are not high, especially for self-employment in a lower skilled trade, the law would support a more questioning and challenging approach than has been taken in the past. The problem over the ECAA category can therefore be resolved through changes in the way decisions are taken which do not require primary legislation or amendment to the Agreements" (paragraph 1.17). Amongst the principal changes recommended in the report were the introduction of a more robust process for deciding applications for entry clearance, with those decisions being taken by entry clearance staff on the basis of the local enquiries, rather than by the Home Office working from the United Kingdom, the reinstatement of interviews for some or all applicants and better training for case workers in the assessment of financial accounts and other business documents.
12. As a consequence of the government's response to the Sutton report, the Entry Clearance Manager in Bucharest wrote on 10 September 2004 to the appellant. The appellant was told as follows:
"As you may be aware, the Home Secretary announced a suspension of consideration of ECAA applications on 30 March 2004, pending an enquiry into the handling of such applications. The report of the Inquiry was published on 17 June. The Home Secretary subsequently announced on 22 July that the service for entry clearance cases would resume on 1 September.
Although previously it may have been indicated that you were to be issued with entry clearance in the ECAA category, the conclusions of the Inquiry, and in particular the finding that a more robust interpretation of the law than that on which case workers in the UK were basing their recommendations would have been appropriate, and that there had been exploitation of the scheme, mean that the public interest requires that we now consider your application afresh."
13. As part of the consideration process, the appellant was invited to attend an interview at the Embassy in Bucharest on 29 September 2004. At that interview, the appellant told the interviewing officer that he was an engine locomotive electrician for the Romanian National Railways and that he intended to do electrical work in the United Kingdom, comprising "cable installation and plugs, installing and fix them" (question 5). He said he ran a company in Romania with his wife selling children's and women's clothing. Asked who had compiled the business plan which he had submitted in connection with his application, he replied "accountancy company with my ideas". The appellant said that he spoke English "not very good, but sometime I will go to school in England". Asked how he would conduct his business with limited knowledge of English, he said that "I know technical terms and I know what to do, I will go to a course as soon as I there" (question 15). He said that he would "also do an electricians course, this is necessary as currently there are some changes in the colours and the cables and voltage will change in the next year as well" (question 16). Asked where the course would be held, the interview record records "applicant looks blank". It was pointed out to the appellant that although he said he could read English, he could not say where the course would be held although the address was clearly on the letterhead of a document he apparently had before him. The appellant said that he did not have the qualification known as BS7671 but that this was not compulsory since the appellant intended to "work for private people, but in time I think I will need this for the big companies, I will improve my English first". The appellant said that whilst it would be difficult for him in the beginning, given his problems with English, he had a friend in the United Kingdom who had a business (question 21).
14. There then occurred the following exchange:
"22. What colours are the wires in a UK domestic appliance plug? Blue, Brown, and Yellow and Green, Red or Brown, Red or Blue.
23. Why have you given me so many different colours? They are the connections to the earth (Yellow and Green) and its either Brown or Black or Red or Blue that's why."
15. The appellant was also asked about his earnings in Romania and his business activities in that country. At the end of the interview, the interviewing officer produced a "summary", which reads as follows:
"The applicant elected to be interviewed throughout in Romanian, and showed no real understanding of questions in English, he states he will take English classes in UK, not beforehand. He states that his "friend" will pass on work to him but has provided no details of any such contracts or employment offers. As stated that he will do an electrical course in UK and provided details, despite stating that he could read English, he was unable to state where this course was, and this is a conversion course for tradesmen who already hold BS7671, which of course the applicant does not have. He and his wife run a clothing business here and produce funds of around £6,000, although company registration documentation seen, no documents of actual sales to substantiate funds. Has previously been refused visit EC's twice (with his wife).
The applicant provided vague and contradictory answers regarding the colours of the wires in a domestic appliance plug and I am not satisfied that he has the ability to provide services on his own account.
On 19 February 2004, the HO authorised issue of ECAA EC's to this applicant and his wife, but I am not prepared to exercise my discretion, and honour the issue of these EC's. Under the new interpretation of the law, this applicant and his wife do not qualify under the rule."
16. The refusal of entry clearance set out these matters in somewhat greater detail. The refusal noted that the appellant had been unable to provide business accounts or documentation detailing the business of selling clothing, nor had the appellant provided documentary evidence to support his assertion that that business brought a profit of £400 per month. The appellant was said to have been unable satisfactorily to explain the source of the funds he had and his funding balance was not consistent with statements he had made regarding his current income. The Entry Clearance Officer accordingly concluded that those funds had been credited to the appellant's account in an attempt to lend credibility to the appellant's application. The Entry Clearance Officer was not satisfied that the funds were in fact available to the appellant. The Entry Clearance Officer noted that the appellant had been unable to provide any documentation relating to the friend whom the appellant said he had in the United Kingdom and who was said to be similarly engaged as a self-employed electrician. Overall, the Entry Clearance Officer considered that the appellant displayed a clear lack of knowledge regarding arrangements for making his business in the United Kingdom a viable one. The Entry Clearance Officer accordingly concluded that the appellant had not shown a genuine and realistic intention to establish such a business in the United Kingdom. Nor did the Entry Clearance Officer consider that the appellant's proficiency in English would enable his business to grow at the proposed rate in the business plan.
The Appellant's Appeal
17. In the appellant's grounds of appeal dated 15 October 2004, he asserted that the Entry Clearance Officer had been shown documentation relating to the appellant's employment, and that of his wife, as well as letters from the Tax Authorities in Romania, concerning the appellant's business, and documents relating to the property in which the appellant lived. The appellant accepted that he did not speak "good enough English" but said he had told the Entry Clearance Officer that he was ready to learn more and that Romanians had gone to England without as much English as he had. As for the answers at interview regarding the wiring of a domestic plug, the appellant said it was possible that his answers had been incorrectly translated or recorded. He said he knew the colours "perfectly".
18. On 15 April 2005, the Tribunal adjourned the appeal in order to enable the parties to submit arguments concerning the issue of whether the appellant had a legitimate expectation that he would be granted entry clearance, as a result of the letter to him dated 19 February 2004. At the adjourned hearing on 25 May, the Tribunal had before it skeleton arguments from the appellant and the respondent.
Did the appellant have a legitimate expectation that Entry Clearance would be granted?
19. By section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002, one of the grounds of appeal to the Tribunal is "that the decision is otherwise not in accordance with the law". If the effect of the letter of 19 February 2004 was to create a legitimate expectation on the part of the appellant, that he would be given the entry clearance he needed to enter the United Kingdom, then the decision of 29 September 2004 to refuse to grant entry clearance may be said to be not in accordance with the law. This, we find, is the only legal basis upon which an argument based upon legitimate expectation may be advanced before us.
20. For the respondent, it was submitted that a person seeking to establish a legitimate expectation must show the following:
(a) a clear and unambiguous representation of a particular benefit being granted;
(b) detrimental reliance by the applicant upon that representation; and
(c) no overriding public interest which justifies defeating the expectation.
21. As the respondent's skeleton argument acknowledges however, paragraph (b) above is subject to a caveat. In R v Department of Education and Employment ex parte Begbie [1999] EWCA Civ 2100, Peter Gibson LJ accepted the appellant's submission in that case that it is not necessary for a person to have changed his position as a result of representations in order for a legitimate expectation to subsist. He nevertheless held (at paragraph 48 of the judgments) that "it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the Court finds unfairness in the defeating of a legitimate expectation."
22. In the present case, there is no evidence whatsoever that the appellant has relied on the representation contained in the letter of 11 February 2004. He may be disappointed by the eventual decision to refuse him entry clearance, notwithstanding the earlier letter, but that is all. Before the Tribunal, Mr Bhatoo asserted that the appellant had, in fact, sold his house on the strength of the letter and had been compelled to go to live with relatives. Mr Bhatoo readily conceded, however, that he had no evidence to put before the Tribunal to support this assertion.
23. The following point is also of significance. The actual grant of entry clearance consists of the placing of a visa in the appellant's passport. It is common ground that that was never done. Furthermore, there is no evidence that the appellant, at any stage between February 2004 and 10 September 2004, ever attended the Embassy in Bucharest, in order to secure that visa, or that he communicated with the Embassy in any other way, in order to get the Entry Clearance Officer to act in pursuance of the letter of 19 February.
24. Faced with a lack of evidence of reliance upon the letter of 19 February, Mr Bhatoo submitted that the decision in February 2004 had involved the appellant being granted a work permit and that it was therefore the case that entry clearance had to be granted by the Entry Clearance Officer in Bucharest. That submission is, however, incorrect. There is no indication that any work permit is required in a case of this kind, involving as it does an application by a person who proposes to be self-employed.
25, The Tribunal further finds that there is in any event a clear overriding public interest which would defeat any legitimate expectation the appellant might seek to assert. In Begbie, Laws LJ explored the scope of this principle at paragraphs 75 to 85 of the judgments. Essentially, Laws LJ held that the intensity of judicial review in cases of legitimate expectation will depend upon the extent to which the decision in question raises important matters of general policy affecting the public at large or a significant section of it. At paragraph 82, the learned Lord Justice held that "the more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the Court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."
26. In the present case, a finding that the appellant has a legitimate expectation to be granted entry clearance would require this Tribunal to venture into the very middle of the macro-political field described by Laws LJ in Begbie. The decision to reconsider the issue of entry clearance arose directly from the recommendations of the Sutton Inquiry and the acceptance by the Government of those recommendations. There was, we find, a very strong public interest in ensuring that persons, such as the appellant, who had not actually been given visas so as to enter the United Kingdom, should have their applications reassessed on the basis of the "more questioning and challenging approach" to the relevant Immigration Rules identified in the third key finding of the Report. To put the matter bluntly, the public has a strong and legitimate interest in seeing its Government take steps to ensure that people who are subject to immigration control do not enter the United Kingdom on a false basis.
27. The Tribunal accordingly finds that the decision in the present case cannot be said to be "not in accordance with the law".
Does the appellant meet the requirements of the Immigration Rules?
28. The Business Plan submitted by the appellant to the Entry Clearance Officer is an important part of the appellant's application. On any reading, it is highly unsatisfactory document, as the following examples make plain. On page 3, under the heading "details of business activities", we find this:
"Advertising and relying on word and mouth will achieve finding customers (sic). [The appellant] expects his initial customers to be private households because most of them accept to wait a little bit more to have the work done (sic). Increasing of incomes will be inevitably achieved when commercial buildings are served. But "Romeo Electrics" will offer services to owners of such buildings once he has maintained a considerable number of regular clients from the private households who will are (sic) supposed to guarantee his permanent income. For this purpose he will need to hire some qualified assistants who will help him with the vast accomplishment of the projects. Everything will be considered with the desires of the customers."
29. At page 4, under the heading "expansion of business services in the future" it is stated that the appellant's "long term plan for the Business is to expand his client base beyond London. Also he intends to broaden his services in order to have more customers. He plans to start repairing of electrical devices. The purpose of the company will be to service more well-to-do people, a fact which will surely have positive effect on the revenues of the company".
30. On the same page, under "strength of the business" it is stated that the appellant has received a very good education and experience in Romania. No details are given. It is then asserted that because of his qualification and experience, the appellant "will build up a reputable business to generate a lot of good will and contacts, which will be of immense value to the future development of his business. The fact that he will offer reasonable competitive prices of the services should attract more customers".
31. At page 5, somewhat belatedly, we find some details as to the qualifications and experience of the appellant. He is said to have graduated as a locomotive electro mechanic which would give him "extensive knowledge on electrical installations both domestic and industrial". The appellant is said to have changed his position in November 2001 when he began working as an installation assembly electrician and that since 2000 he has worked "on his own account servicing private clients as an electrician". No further details of that are given.
32. On page 7, reference is made to "available sub-contractors". It is stated that "should the need arise for taking on a larger number of sub-contractors [the appellant] intends to use his own connections and/or to advertise in order to find suitable and beneficial contracts". No details of any such connections are given. The Plan then goes on to say that in case the appellant faces "some initial difficulties in finding clients", he would work as a sub-contractor and that amongst such sub-contractors the appellant “may find his future partners for bigger projects".
33. On page 8, the "strategy of the company" is said to be "based on continual improvement of the material base". By "material base" it appears that the Plan is referring to "materials which have already proven their names and brands, which will attract a larger number of customers". On page 9, reference is made to the appellant's "contacts within the industry" who, it is said, "will help him to gain first hand knowledge of the electrical market requirements in London". No details of these contacts are given.
34. Overall, the Business Plan submitted by the appellant is, we find, both remarkably vague and shot-through with platitudinous and naive statements. It is very far from being a document that suggests a serious intent on the part of the appellant to leave his home country and engage as a self-employed electrical contractor in the United Kingdom. Indeed, we have to say that its submission – far from advancing the appellant's application – does the opposite.
35. Having considered the evidence in this case, the Tribunal finds that the appellant has entirely failed to show on balance that he meets the requirements of the Immigration Rules. Paragraph 212(2) requires the money which the appellant is putting into the business to be under his control and sufficient to establish himself in that business in the United Kingdom. Sub-paragraph (iii) provides that until the business provides an income the appellant must have sufficient additional funds to maintain and accommodate himself and his dependants (in the present case his wife) without recourse to employment or public funds. Sub-paragraph (iv) provides that the appellant's share of the profits of the business must be sufficient to maintain and accommodate himself and his dependants without recourse to employment or public funds. As the Entry Clearance Officer observed, significant deposits had been made into the appellant's bank account around the time of the application and no explanation for those payments has been provided. Nor were bank statements provided to show the financial position of the appellant over a sufficient period of time to enable an accurate picture of his finances to be obtained. No accounts of the Romanian business were provided so as to show profit and turnover over a period of time. There was inadequate evidence to prove that the sum of some £6,000 held by the appellant had been earned and saved by him and his wife.
36. An applicant's command of English is not in itself a determining feature. Having said that, the appellant's command of English was plainly very limited and the Entry Clearance Officer was entitled to observe that the appellant did not intend to undertake a language course before coming to the United Kingdom. The appellant was unable to read a letterhead upon which the address was given of a place in the United Kingdom, where the appellant said he intended to undertake a training course, following his admission to this country. It is frankly difficult to see how any person who intended to work, at least initially, as a domestic electrician would be able to communicate with prospective customers, if he had as limited a command of written and spoken English, as does the appellant.
37. As we have already found, the Business Plan in no sense suggests that the appellant genuinely intends to work as an electrician in a self-employed capacity in the United Kingdom. In addition, the appellant gave little explanation at his interview as to the nature of his business activities. He asserted at one point that replacing plug points in a house could cost between £25 and £30 and that one could charge £1,500 for rewiring a house. He did not, however, explain how he had arrived by these figures. Furthermore, the cost figures provided by the appellant at his interview did not relate to those contained in the Business Plan.
38, Quite apart from his difficulties with English, the appellant demonstrated what would be a frightening lack of knowledge about the wiring of a British plug if, as he would have had the Entry Clearance Officer and the Tribunal believe, he were truly intending to carry out electrical work in private households in the United Kingdom.
39. Overall, the Tribunal finds that the appellant has failed on balance to show that he meets the requirements of the Immigration Rules to be admitted on the basis contained in his application for Entry Clearance.
40. This appeal is dismissed.
P R Lane
Senior Immigration Judge
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