Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13668/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 3 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Miss Saranya Dhanabalan
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Mr C Mannan, Counsel, instructed by Westbrook Law

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against a decision made by First-tier Tribunal Judge P J M Hollingworth on 24 April 2016, in which he allowed the appeal by Miss Dhanabalan, to whom I shall refer as the Claimant.
2. The short history is that in 2011 the Claimant was granted leave to remain under Tier 1 as an Entrepreneur. This was an application made both in respect of her own application and also that of her business partner, Miss [G]. The Claimant was given leave until January 2015. She then applied to extend her leave to remain and in a decision dated 23 March 2015 that application was refused.
3. The reasons given by the Respondent for refusing were essentially four: that there were documents missing, in particular audited accounts; that there was no acceptable evidence to show that the Claimant and Miss [G] are business partners and have an equal share of the funds or business as specified under Appendix A; that the accounts and accountants' letter, business bank statements and bank letter do not show that the Claimant and Miss [G] have both invested in the company trading as Vermats & Co nor that they had both invested in the business being run by Miss [G].
4. Judge Hollingworth, having considered the evidence, made clear findings as follows: at [11], that the Secretary of State has proceeded to decide Miss [G]'s case on the basis of information which she had provided without an audit being carried out. In respect of Miss [G] a positive decision was made on 17 March 2015 to grant her extension for leave to remain as a Tier 1 (Entrepreneur). Reference was also made by Judge Hollingworth at [11] to the GCID case notes for Miss [G] from her Home Office file, which make specific reference to the fact that Miss [G] was part of an entrepreneurial team and the other entrepreneur is named and the name that appears is that of the Claimant.
5. At [13]-[15] the Judge held:
"13. I find that sufficient indicia were present on the papers submitted by this Appellant in naming Miss [G] to enable the Respondent to correlate the information which had been provided and the facts which had already been established in relation to Miss [G]. Pursuant to paragraph 245AA where a document does not contain all the specified information the Respondent may contact the applicant and request the correct documents.
14. In the particular circumstances of this case, I find that it would have been abundantly clear to the Respondent that the application in respect of Miss [G] had been granted and that the application made by this Appellant referred to that of Miss [G]. Given the interdependency between the factual matrix forming the foundation for the grant of Miss [G]'s application and that forming the foundation of this Appellant's application, I find that the material identified by Mr Khan on behalf of the Appellant, demonstrated the availability of the specified evidence relied upon by this Appellant but which had not been provided.
15. The existence of the missing information was verifiable from the records already possessed by the Respondent in relation to Miss [G], given that Miss [G] and this Appellant formed an entrepreneurial team and given that the requisite level of funds and the accessibility on the part of both Miss [G] and the Appellant in this case to those funds, had already been demonstrated and further given that those funds had now been invested in businesses namely Arkwright's in Cornwall and in a petrol station in Norfolk."
6. The judge went on to find at [16] to [18] that the discretion vested in the Respondent should have been exercised to pursue further documentation from the Claimant in relation to specified evidence. Bearing in mind the minutes from Miss [G]'s file, at [16] he says:
"I find that the Respondent's discretion to make further enquiries of this Appellant in relation to specified evidence, assumed greater significance and would act in the ordinary course of affairs as an inducement to the Respondent to exercise discretion to make further enquiry of this Appellant. I find that this would constitute an aspect of the public duty of the Respondent in ensuring that the Immigration Rules were being upheld."
7. At [18] the Judge concluded by finding:
"In these circumstances I allow the appeal to the limited extent that the decision taken by the Respondent is not in accordance with the law and that the Respondent should further consider the matter given the integral nature of this Appellant's application for an extension in juxtaposition to that made by Miss [G]."
8. Permission to appeal to the Upper Tribunal was sought in time on 27 April 2016 on the basis that the First-tier Tribunal Judge had erred in giving weight to immaterial matters. It was submitted at paragraph 5:
"5. The Appellant failed to provide the required specified documents under the Immigration Rules and does not qualify for discretion under paragraph 245AA of the Immigration Rules.
6. It is submitted that the judge erred in law by remitting the Appellant's application back to the Respondent. It is submitted that the appeal should have been dismissed."
9. In a decision dated 7 September 2016, Designated Judge of the First-tier Tribunal Appleyard granted permission to appeal on the basis that:
"3. The grounds seeking permission to appeal argue that the judge has given weight to immaterial matters and that the appeal should have been dismissed as the Appellant failed to provide the required specified documents under the Immigration Rules and does not qualify for discretion under paragraph 245AA of the Immigration Rules. By remitting the Appellant's application back to the Respondent the judge has erred as he should have dismissed the appeal outright.
4. These grounds are arguable."
Hearing
10. At the hearing before me Mr Tarlow essentially sought to rely on the grounds of appeal. He said it was a short point. It was necessary for the Claimant to provide specified evidence with reference to Appendix FM-SE. If that evidence is not available or supplied with the application, then quite simply it was for the Judge to simply reject the appeal rather than send it back to the Secretary of State for reconsideration. He submitted that nothing in the documentation required the discretion vested in paragraph 245AA and the Judge had made a material error in remitting the appeal back to the Secretary of State.
11. In his submission, Mr Mannan submitted that the difficulty with the Home Office position is that the Judge took into account all aspects of the application and considered the documents that were submitted by the Claimant's business partner and found that this was the fair course of action. Mr Mannan also helpfully clarified that some of the documents that the Judge asserted had not been handed in or sent in at [6] of his decision had in fact been sent in and he drew my attention in particular to E1 of the Respondent's bundle, which contained a letter from Param & Company Chartered Certified Accountants dated 15 December 2014, which was written specifically in respect of this Claimant. However, this document was considered as part of Miss [G]'s application, which was submitted at the same time of this Claimant's application and of course Miss [G]'s application was successful.
12. He submitted that it is clear from the GCID notes on Miss [G]'s file that there is reference to this Claimant and it was clear the Judge found that had the Claimant's case been considered in light of all the evidence, including the evidence provided in respect of Miss [G], that her application would have succeeded. He further submitted that the Secretary of State should have exercised discretion to make further enquiries, in particular with reference to Miss [G]'s file given the clear interdependency between the two applications. Any missing information was clearly verifiable from the records for Miss [G]. The Judge found, properly, that given the integral nature of linked business affairs, the Respondent's failure to make further enquiries assumed greater significance and essentially amounted to an inducement to make further enquiries regarding this Claimant as part of the Respondent's public duty.
13. In his reply, Mr Tarlow reiterated that paragraph 245AA and the discretion vested therein was designed to deal with documents in a sequence where for example one is missing but in the absence of documents there was no reason for the Respondent to make any enquiries of the claimant.
Decision
14. I find no material error of law in the decision of First-tier Tribunal Judge P J M Hollingworth. In a careful and detailed analysis of the evidence and the absence of evidence in relation to this Claimant's Tier 1 Entrepreneur application, the Judge gave clear and adequate reasons for finding that this was, unusually, a case in respect of which the Respondent should have considered the exercise of her discretion under paragraph 245AA and that this was particularly the case given that the application for an extension made by her business partner, Miss [G], was granted on 17 March 2015, six days before the refusal in this Claimant's case.
15. There is clearly an issue of fairness given the interdependence and great similarity between the applications, which were made by business partners. The issue of fairness clearly arises when one application is successful and the other is refused. I do find that this was a proper decision by the Judge to allow the Claimant's appeal to the limited extent that the Respondent's decision was not in accordance with the law and, as the judge concluded at 18: "The Respondent should further consider the matter given the integral nature of this Appellant's application for an extension in juxtaposition to that made by Miss [G]."
16. For those reasons I uphold the decision of P J M Hollingworth with the effect that the appeal is remitted back to the Secretary of State for the Home Department in accordance with his direction at 18 of his decision dated 21 April 2016.

Notice of Decision
The appeal by the Secretary of State for the Home Department is dismissed.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Chapman