Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21081/2015
IA/21893/2015, IA/21887/2015
IA/21882/2015, IA/21878/2015
IA/21086/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 July 2016
On 5 September 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

APURBA [D]
ANOWAR [H]
SHIPRA [S]
KAMRUN [N]
[Mi H]
[Mk H]
Respondents

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mrs R Layne of Counsel, instructed by Londonium Solicitors

DECISION AND REASONS
1) This is an appeal by the Secretary of State against a decision by Judge of the First-tier Tribunal Hodgkinson. The six appellants before the First-tier Tribunal are hereinafter referred to as "the applicants".
2) The Judge of the First-tier Tribunal allowed the appeals by the first and third named applicants under the Immigration Rules. In relation to the appeals by the second, fourth, fifth and sixth applicants, the judge decided that the refusal decisions were not in accordance with the law. Their applications remained outstanding before the Secretary of State.
3) The background to the appeals is that the first and second applicants submitted on 17 May 2013 applications for leave to remain as Tier 1 entrepreneurs. The remaining applicants were their dependants. The applications by the first and second applicants were refused by the Secretary of State on 25 May 2015 and on the same date the remaining applicants were refused as dependants.
4) At the hearing before the First-tier Tribunal the Secretary of State was not represented. The judge concluded that the applications by the first and second applicants had not been properly considered by the Secretary of State. The applications were considered on the basis that the first and second applicants were self-employed. However, the evidence showed that they were not self-employed but they operated their business through the medium of a limited company by the name of Apurba and Anowar Associates Ltd. The first and second applicants were directors of this company. Accordingly they did not require to submit with their applications specified documents required under the Immigration Rules from applicants who are self-employed and the Secretary of State's refusal of the application on the grounds that these documents were absent was wrong.
5) The judge found that the relevant requirement under paragraph 41-SD of Appendix A for a director of a limited company required the applicants to submit a print-out from Companies House of the company's filing history page and of the current directors' appointment report, listing the first and second applicant's names therein. The judge was satisfied that these documents were submitted with the relevant applications.
6) The judge found also that the Secretary of State had made a mistake when considering the bank statements submitted by the first applicant as evidence of maintenance. The case worker who considered the application had omitted to look at the second page of the bank statement. Had this been examined it would have been found that the first applicant met the relevant maintenance requirement.
7) The second applicant relied on different bank statements to establish maintenance. One of the pages of the bank statements on which he relied had not been submitted with his application. Accordingly the Tribunal could not take this particular bank statement into account. Having regard to paragraph 245AA of the Immigration Rules, however, the matter could readily have been remedied by the Secretary of State requesting of the second applicant the final bank statement in the sequence, which would have shown that the requisite maintenance requirement was satisfied for the full 90 day period.
8) The judge concluded that the Secretary of State acted unlawfully in not requesting a further statement and the decision of the Secretary of State was not in accordance with the law.
9) The conclusion of the Judge of the First-tier Tribunal was that the first applicant succeeded under the Immigration Rules, as did the third applicant as his dependant. The decision in respect of the second applicant was not in accordance with the law, so similarly were the decisions in respect of his dependants, the fourth, fifth and sixth applicants.
10) An application for permission to appeal was made on behalf of the Secretary of State. So far as the first and third applicants were concerned, this stated that the judge had been wrong to allow the appeals outright without conducting an assessment of whether all the requirements of paragraph 41-SD of Appendix AA had been met for the award of 75 points for attributes. The judge had failed to set down in clear terms reasons for finding that the relevant Companies House documents were submitted with the application, particularly as the Secretary of State's bundle was not complete. The judge could take account only of material which was before the original decision maker.
11) Permission to appeal was granted on the basis that it was arguable that, having found the first and third applicants were directors of a limited liability company and not self-employed, the judge ought simply have stopped at that point and allowed all of the appeals to the limited extent that the decisions under appeal were not in accordance with the law. It was arguably not open to the judge (and on the material before him he could not in fact ascertain) whether the applications of the first and third applicants met the requirements of the Immigration Rules for directors.
Submissions
12) At the hearing before me Mr Avery began helpfully by explaining the background to the appeal. He further submitted that in terms of paragraph 41-SD the First-tier Tribunal did not have before it all the evidence which should have been submitted in respect of the first and second applicants as company directors. This required not only documentation from Companies House but also evidence that the business had a UK bank account of which the applicants were signatories. Evidence of the company bank account was not before the First-tier Tribunal and accordingly the appeals by the first and third applicants should have been sent back to the Secretary of State.
13) For the applicants, Mr Layne pointed out that the judge had made a finding that the first and third applicants were employees of the company. Business bank statements had been produced and when the application was made all the relevant documents had been submitted. This could be seen from a covering letter dated 17 May 2013. This listed all the documents submitted including, at item 14, the bank statement for the business for the period from 18 March to 2 May 2013 in the name of Apurba and Anowar Associates Ltd.
14) Mr Avery acknowledged that the business bank statement was in the Home Office file but pointed out that there was nothing to show that this bank statement was before the First-tier Tribunal and nothing to show that the first and second applicants were signatories on the bank statement. It was further pointed out, however, that the relevant part of paragraph 41-SD, namely sub-paragraph (e)(vii)(2), requiring an applicant to produce evidence that the business has a UK bank account of which the applicant is a signatory, states that, if the applicant is currently a director, either a company bank statement showing that the company has a UK account must be produced, or a letter from the UK bank in question on its headed paper confirming that the company has a bank account and the applicant is a signatory of that account. In other words either the appropriate bank statement must be produced, or a letter confirming the existence of the bank account and that the applicant is a signatory of the account, but not both. If the bank statements are produced, a letter confirming that the applicant is a signatory would not be required.
15) Mr Layne resumed that the Judge of the First-tier Tribunal had identified the mistake by the Secretary of State and could have allowed the appeal on the basis of that mistake. The judge went on, however, to consider the relevant requirements of paragraph 41-SD, including the company bank statements. There was a letter from HMRC in relation to corporation tax which was submitted with the application. Again this was listed in the covering letter. Although the company bank statement was not referred to at paragraph 16 of the judge's decision all the documents were before the judge. At the hearing the judge went through the documents and asked questions about them. The judge was entitled to find that the relevant documents were produced.
16) Mr Layne further informed me that the second applicant had had an interview with a case worker in April and was expecting a decision following the decision of the First-tier Tribunal.
Discussion
17) I have considerable sympathy with the Judge of the First-tier Tribunal in this matter. The judge was entirely correct to find that the Secretary of State had not considered the Tier 1 Entrepreneur applications correctly. The Secretary of State erroneously treated the two main applicants as self-employed when they were directors of a company. Having identified this mistake, the judge might have expected the Secretary of State's representative to assist in resolving the appeals. Far from such assistance being proffered, however, the Secretary of State was not represented at the hearing before the First-tier Tribunal. In these circumstances there might be a school of thought that where the Secretary of State did not send a representative to the hearing before the First-tier Tribunal, the Secretary of State ought to accept some responsibility if the correct answer is not achieved. Nevertheless, it is the responsibility of the Tribunal to ensure before allowing an appeal under Immigration Rules that all the requirements of the Rules are in fact met. In this appeal the Judge of the First-tier Tribunal specifically referred at paragraph 16 of the decision to the documents which were required from Companies House and also subsequently to the maintenance requirements. The judge did not mention, however, the requirement in paragraph 41-SD in relation to the company bank account, as set out above.
18) Mr Layne drew my attention to the covering letter of 17 May 2013 listing the items submitted with the applications. He referred to item 14 as being the business bank account although this is headed "both main applicants' bank statement for funds (Santander)". I did not, however, appear to have before me a copy of his document either in the bundle lodged for the Upper Tribunal or in the bundles originally before the First-tier Tribunal.
19) The absence of this item might not have been an issue had it been specified as having satisfied the Judge of the First-tier Tribunal. Mr Layne assured me at the hearing that all the documents in question were before the First-tier Tribunal and had been before the Secretary of State. The difficulty for the applicants, however, is that the Judge of the First-tier Tribunal did not refer specifically to the business bank statement and therefore it is difficult to be satisfied that he had proper regard to it and indeed therefore was satisfied that all of the relevant requirements were met.
20) At this stage the only course that I can take is to agree with the submissions on behalf of the Secretary of State that the appeals by the first and third applicants should, like the other appeals, have been found by the Judge of the First-tier Tribunal not to be in accordance with the law and therefore the applications were still before the Secretary of State for consideration. The Judge of the First-tier Tribunal attempted to ascertain whether the relevant requirements were met but unfortunately, without help from the Presenting Officer, it appears the judge omitted one of the requirements. For this reason the decision in respect of the first and third applicants cannot stand. A different decision must be substituted stating that the Secretary of State's decisions in respect of these two applicants were not in accordance with the law.
Conclusions
21) The making of the decisions of the First-tier Tribunal in respect of the first and third applicants involved the making of an error on a point of law.
22) The decisions in respect of the first and third applicants are set aside.
23) I remake the decisions in respect of the first and third applicants by allowing their appeals to the limited extent that their applications remain outstanding for consideration by the Secretary of State.

Anonymity
24) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for doing so.

Fee Award (Note: this is not part of the decision)
The Judge of the First-tier Tribunal made a full fee award on the basis that all the appeals were allowed and a mistake had been made by the Secretary of State in the consideration of the original applications. I uphold the Judge of the First-tier Tribunal on this issue.

Signed Date

Upper Tribunal Judge Deans