Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07566/2013

THE IMMIGRATION ACTS

Heard at : Field House
Determination Sent
On : 1st November 2013
On : 8th November 2013

Before

Upper Tribunal Judge McKee

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MEGHNA AGARWAL

Respondent

Representation:

For the Appellant: Mr Lawrence Tarlow of the Specialist Appeals Team
For the Respondent: unrepresented

DETERMINATION AND REASONS

1. This is one of three linked appeals in which the appellants before the First-tier Tribunal (a married couple and their child, the wife being the principal appellant) successfully challenged the refusal on 1st March 2013 of further leave to remain in the United Kingdom as a Tier 1 (General) Migrant and her dependants. The appeals came before the First-tier Tribunal on 18th July 2013, and were allowed by Judge Cheales.

2. On behalf of the Secretary of State, permission was sought to appeal to the Upper Tribunal, the grounds being drafted by Mr Tarlow. The point was a narrow one, namely that, although the Tier 1 Migrant, Mrs Agarwal, had started up her own company and was doing well, she had not complied with the requirement at paragraph 25(b) of Appendix A to the Immigration Rules, that she "must be registered as self-employed in the UK, and must provide the specified evidence." This she had not done.

3. Permission was duly granted, and Mrs Agarwal, who is unrepresented, was intending to rely on an argument derived from Alvi, namely that the failure to meet requirements which are in Policy Guidance but not in the Immigration Rules should not lead to rejection of an application. Fortunately for her, she did not need to advance this argument when the matter came before me, because Mr Tarlow, with his customary fairness, drew to my attention to the following definition at paragraph 6 of the Immigration Rules, under the heading 'Interpretation':
"Under part 6A of these Rules, 'self-employed' means an applicant is registered as self-employed with HM Revenue & Customs, or is employed by a company of which the applicant is a controlling shareholder."

4. This definition was inserted into the Immigration Rules on 29th February 2008, when the Points Based System was first rolled out, and Mrs Agarwal meets the latter of the two alternative requirements. The requirement at paragraph 25(b) of Appendix A was inserted on 6th April 2011, but no change was made to the definition of 'self-employed' at paragraph 6 in the main body of the Immigration Rules, which sets out the meaning of 'self-employed' for the whole of Part 6A of those Rules. Appendix A is subordinate to Part 6A, filling out the detail needed for the application of the general requirements laid down by Part 6A. Where there is a clash between the definition of such a general term as 'self-employed' between Part 6A itself and Appendix A, the former is to be preferred.

5. In the instant case, the wider definition accords with both fairness and common sense. Mrs Agarwal has achieved the purpose for which the Tier 1 (General) route was set up in the first place, to enable talented individuals from overseas to make a useful contribution to the British economy. Her business is a going concern, and she and her dependants do meet the requirements for further leave to remain in the United Kingdom.

DECISION

The determination of the First-tier Tribunal is upheld, and the Secretary of State's appeal is dismissed.

Richard McKee
Judge of the Upper Tribunal
1st November 2013