Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06071/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 10 December 2013
on 19 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

KASIM OZER
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: No legal representative
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

No anonymity order requested or made.

DETERMINATION AND REASONS
1) The appellant is a citizen of Turkey, born on 15 September 1985. He came to the UK on a family visit visa, and stayed with his brother in Fife. On 21 August 2012, prior to expiry of his visa, he submitted through solicitors in England an application to remain to establish himself in business as a cleaner. That application was available to him in light of the Turkey/EEA Association Agreement, and fell to be considered in terms of paragraph 21 of HC510 (quoted in the refusal decision).
2) The respondent refused the application by letter dated 5 February 2013, giving various reasons for finding that the appellant did not genuinely wish to establish himself in business as proposed.
3) First-tier Tribunal Judge Mrs Debra Clapham heard the appellant’s appeal against that decision on 29 July 2013 and dismissed it by determination promulgated on 13 August 2013. The judge accepted that the appellant had “formed the idea of creating … a low level business” but not that there was “any firm intention to form a business”.
4) The appellant appealed to the Upper Tribunal on various grounds, including the criticism that the findings quoted are irrational and self-contradictory. On 9 September 2013, Judge Wellesley-Cole found the grounds to be arguable and granted permission.
5) The appellant attended the hearing on 10 December 2013 without any representative. He advised me that he became aware only shortly before the hearing that his former English-based representatives had not arranged on this occasion for an advocate to appear. He said that his English was not very good, and asked if his brother might help him. In the circumstances I permitted the appellant’s brother, Mr Erdal Ozer, to assist informally. I was told that the appellant had declined to pay anything further for his representation, and so did not seek an adjournment, and preferred the hearing to go ahead.
6) Mr Mullen submitted that the grounds of appeal to the Upper Tribunal did not disclose error of law by the First-tier Tribunal, and amounted only to challenges to factual conclusions which the FtT was entitled to reach.
7) One point raised in the grounds went to the judge’s criticism at paragraph 42 that the appellant had not appreciated that he would have to obtain a licence. The ground says that “the requirement to have a licence has not been referenced.” Mr Mullen produced an extract from a Scottish Government website to show that there is a local authority requirement for the appellant to obtain a window cleaner’s licence. He said that this established that the judge was correct, although the point was relatively minor and only one of several reasons given for rejecting the appellant’s case.
8) The appellant said that he told the solicitors in London who helped him with the original application of his intention to set up a cleaning business. Although they charged him for their services, they had not communicated clearly or regularly with him. He had not seen the business plan before it was sent to the Home Office or even until he attended the First-tier Tribunal hearing. He did not think he had been properly enabled to prove his intention to set up a one person cleaning business, but as he and his brother told the FtT, that is exactly what he plans to do, and he has a number of customers lined up.
9) I reserved my determination.
10) At first sight, this case is only an ongoing and rather confused dispute over a negative conclusion which, even if the case might have gone either way, the First-tier Tribunal was entitled to reach; but on full consideration, I think the First-tier Tribunal has been led astray as a matter of law.
11) The respondent’s refusal letter has an artificial air. It criticises the appellant’s business plan for being very similar to many others, but a one person cleaning business is the simplest business proposal imaginable, and one such business is hardly likely to differ hugely from another. The appellant is criticised for not explaining how his business will stand out from its competitors, but he does not have to plan anything unique. The next criticism is that he plans to have no staff for the first 4 years, and therefore could not operate if he was ever indisposed – an observation applicable to every one person business. It is said that the appellant is entering a “saturated market” because there are 151 cleaners in his post code, but there is no analysis of what number of cleaners in his post code would leave a gap in the market, and why in Fife there is no room for one more. The appellant is criticised for not showing that he will be able to obtain a UK driving licence, which he will have to do after 12 months in the UK; but that is not likely to be beyond the scope of any averagely able person. A criticism is made under the heading that the appellant’s part in the business may amount to “disguised employment”, from which no rational point can be extracted, unless every service provider is a “disguised employee”. It is said that he will have language difficulties, but he would hardly be the only self-employed cleaner in the UK who does not have English as a first language.
12) Not everything in the refusal letter is entirely irrational; but it treats the appellant’s proposal with extraordinary rigour.
13) I note that the application on the appellant’s behalf itself gave a rather technical air to what must be mainly guesswork on the amount of work the appellant might obtain; but in my view the respondent and the judge lost sight of what the appellant actually had to prove. To set up a one person cleaning business is surely not a complicated proposition. It requires a person able and willing to work hard, a modicum of capital, and little more. The question the judge had to answer was whether it is more likely than not that the appellant genuinely intended to do what he said. Her findings and reasons at paragraphs 40-44 are self-contradictory, and they contain no clear reason for finding against the appellant on that essential issue. I therefore remake the decision.
14) The appellant says, “I intend to set up as a cleaner, mainly cleaning windows and carpets, offering my services to both domestic and commercial premises.” The respondent’s rejection of this proposal, read as a whole, is an exercise in suspicion and negativity, which does not make even one really telling point. There is nothing inherently unlikely about the appellant’s stated intention. I cannot see any good reason for concluding on the balance of probability that he does not intend to go into business as a cleaner, or that he is anything but an ordinarily hard working young man, likely to find enough work to make a living.
15) In summary: the First-tier Tribunal determination errs in law, by making self-contradictory and unclear findings and by failing to give adequate reasons. It is set aside. In remaking the decision, I find that the appellant has shown on the balance of probability a genuine and realistic intention of starting up a one person cleaning business. The appeal is allowed.

11 December 2013
Judge of the Upper Tribunal