Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44627/2014
IA/44577/2014
IA/44580/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 25 January 2017
On 2 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

MD AMINUL HASAN
SHUVASISH DAS
SHRABANTI PAUL
(ANONYMITY ORDER NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms T Kabir (for Thamina Solicitors)
For the Respondent: Mr C Avery (Home Office Presenting Officer)

DECISION AND REASONS

1. These are the appeals of MD Aminul Hasan and Shuvasish Das, citizens of Bangladesh born 20 November 1993 and 15 November 1984, against the decision of the First-tier Tribunal of 7 July 2016 dismissing their appeals, themselves brought against the decision of 23 October 2014 to refuse their applications for further leave to remain as Tier 1 Entrepreneurs and to make removal directions against them section 47 of the Immigration Asylum and Nationality Act 2006. Shrabanti Paul has an appeal dependent on theirs.

2. The immigration history provided by the Respondent sets out that both were present as post study workers before applying for the Entrepreneur route as a Team on 8 August 2014. Mr Das arrived as a student and was granted leave to enter on 20 September 2007, and extended his leave until 10 August 2014, whereas Mr Hasan arrived as a student on 10 November 2009 and extended his leave until 18 August 2014.

3. The applications, to be granted leave to establish a consultancy providing services for healthcare providers, were refused on 23 October 2014, because, under Table 4 of Appendix A to the Rules, it was necessary to establish that a business was in operation prior to 11 July 2014, and it was not accepted that this was established. The decision maker considered that no evidence been provided demonstrating ownership of a website domain name and nor had a company bank statement demonstrating trading before 11 July 2014 been provided. In consequence points were generally not awarded under Appendix A.

4. Before the First-tier Tribunal the Respondent conceded that the website refusal reason was not well founded and that it would not be pursued. The Appellant’s advocate submitted that the applications had been made supported by a letter from HSBC of 29 July 2014 relating to an application for a business current account for Orange Line Ltd; Cashplus cards valid from August 2014 until August 2016 were also supplied. It was unfair to raise any additional criticism of the application at this late stage. For the Respondent it was submitted that the documents supplied did not establish that the business had been trading before 11 July 2014.

5. The First-tier Tribunal dismissed the appeals because

(a) Notwithstanding that there had been some confusion on the Respondent’s behalf before it as to the terms of the refusal letter and the precise deficiencies identified in the Appellants’ applications, read as a whole it was apparent that the true point taken was an absence of evidence that the business was trading prior to July 2014;

(b) The evidence available, via a Cashplus business account application of 2 August 2014, correspondence in August 2014 from the financial institutions in relation to the accounts, a company bank statement showed a card set-up fee of 5 August 2014, Cashplus cards valid from August 2014, and the letter from HSBC of 29 July 2014 referring to a business bank account application of that date, did not establish trading prior to 11 July 2014.

6. Grounds of appeal submitted that the Rules required proof of business activities via either the provision of a contract or bank statements: neither the Secretary of State nor the Judge had clearly raised any concern as to the contract provided.

7. Permission to appeal was granted by the Upper Tribunal on 13 December 2016, the First-tier Tribunal having previously found there to be no error of law and refusing permission. Permission was given on the basis that, whilst the allegation of prejudice had not been made out given the fact that the refusal letter made the issues tolerably clear and no adjournment request had been made, nevertheless it was arguably unlawful for the First-tier Tribunal to have failed to appreciate that the requirement to provide a service contract or bank statement represented two alternative ways of satisfying 41-SD(iv). This might have been a material error given that a service contract was apparently provided on the application.

8. A service agreement between Care Solution Bureau and Orange Ltd was provided to me at the hearing and permission sought to adduce it under Rule 15A of the Upper Tribunal Procedure Rules 2008.

9. For the Appellant, Ms Kabir argued that the refusal letter had been unclear such that it was uncertain under which element of the Rules the Appellant had been refused. Had the Secretary of State had truly been concerned about the existence or content of the contract of service then the relevant document, provided on the original application, could easily have been supplied at the appeal hearing; additionally the language of the refusal letter confusingly cited some of the text appearing only in 41-SD(e)(vii) within a refusal that elsewhere ostensibly relied on 41-SD(e)(iv). For the Respondent, Mr Avery replied that the terms of the refusal letter were sufficiently clear to the informed reader and that it would be wrong to admit further evidence to remedy a failure that was of the Appellant's own making. The representatives agreed that were I to find an error of law in the proceedings below it would be appropriate to finally determine the appeal.

Findings and reasons

10. Table 4 of Appendix A provides:

“(d) The applicant:
(i) is applying for leave to remain,
(ii) has, or was lasted granted, leave as a Tier 1 (Post-Study Work) Migrant,
(iii) since before 11 July 2014 and up to the date of his application, has been continuously engaged in business activity which was not, or did not amount to, activity pursuant to a contract of service with a business other than his own and, during such period, has been continuously:
(1) registered with HM Revenue & Customs as self-employed, or
(2) registered with Companies House as a director of a new or an existing business. Directors who are on the list of disqualified directors provided by Companies House will not be awarded points,
(iv) since before 11 July 2014 and up to the date of his application, has continuously been working in an occupation which appears on the list of occupations skilled to National Qualifications Framework level 4 or above, as stated in the Codes of Practice in Appendix J, and provides the specified evidence in paragraph 41-SD. "Working" in this context means that the core service his business provides to its customers or clients involves the business delivering a service in an occupation at this level. It excludes any work involved in administration, marketing or website functions for the business”

11. There are then provisions specifying the precise documents that need to be supplied.

“(e) If the applicant is applying for leave to remain, and has, or was lasted granted, leave as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant, he must also provide the following evidence that he meets the additional requirements set out in Table 4:
…
(iii) one or more of the following specified documents covering (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 (as applicable), up to no earlier than three months before the date of his application:
(1) advertising or marketing material, including printouts of online advertising, that has been published locally or nationally
(_a) showing the applicant's name (and the name of the business if applicable) together with the business activity; or
(_b) where his business is trading online, confirmation of his ownership of the domain name of the business’s website.
(2) article(s) or online links to article(s) in a newspaper or other publication showing the applicant's name (and the name of the business if applicable) together with the business activity,
(3) information from a trade fair, at which the applicant has had a stand or given a presentation to market his business, showing the applicant's name (and the name of the business if applicable) together with the business activity, or
(4) personal registration with a UK trade body linked to the applicant's occupation; and
(iv) one or more of the following documents showing trading, which must cover (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 (as applicable), up to no earlier than three months before the date of his application:
(1) one or more contracts for service. If a contract is not an original the applicant must sign each page. Each contract must show:
(_a) the applicant's name and the name of the business,
(_b) the service provided by the applicant's business;
(_c) the name of the other party or parties involved in the contract and their contact details, including their full address, postal code and, where available, landline phone number and any email address; and
(_d) the duration of the contract; or
(2) one or more original letters from UK-regulated financial institutions with which the applicant has a business bank account, on the institution’s headed paper, confirming the dates the business was trading during the period referred to at (iv) above.
…
(vii) the following evidence that the business has a UK bank account of which the applicant is a signatory:
(1) if the applicant is currently self employed, a personal or business bank statement, showing transactions for his business (which must be currently active), or a letter from the UK bank in question, on its headed paper, confirming that he has a business and acts through that bank for the purposes of that business …”

12. As can be seen from the foregoing, an applicant for the Entrepreneur route who is switching from the Post Study Worker category has to establish that they were trading before 11 July 2014. There are only certain forms of evidence that are admissible to prove this. Amongst the requirements are

(a) Those specifically demonstrating advertising, marketing or trade registration, which needs to be shown via a series of four alternatives: advertising or marketing material including proof of ownership of the business’s website domain name where the business is trading online, articles showing name and business, articles or online links to newspaper, trade fair information, or registration with a relevant UK trade body (41-SD(e)(iii));

(b) Those showing trading activity, which is to be evidenced via contracts for service or letters from UK-regulated financial institutions (41-SD(e)(iv));

(c) Possession of a UK bank account (41-SD(e)(vii)).

13. The refusal letter at times uses language appropriate to all three of these requirements. Having repeatedly re-read it, and heard submissions positing various different interpretations, it seems to me that the decision maker intended to identify the second of these three criteria as that justifying refusal. However, in so doing, the decision maker was apparently unaware of the contracts for service proviso, in that they overlooked a document which Ms Kobir, making submissions with a duty to the court as a solicitor of the Supreme Court, confirmed had been provided on the original application.

14. My initial reaction to this appeal was the Appellant’s representatives should have appreciated that the refusal reason relied upon either was, or was very likely to be, (41-SD(e)(iv)), as no other interpretation makes sense of the refusal letter. However, the lack of clarity arises in a context where the judiciary have recently expressed real concerns as to whether migrants are being given sufficient notice of the reasons why their applications have failed. There is a particular difficulty when refusal letters read as if compiled from pre-written blocks of text imperfectly tailored to the matter in hand.

15. As observed by Jackson LJ in Pokhriyal [2013] EWCA Civ 1568, referring to the Points Based System §4: “These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied”. Longmore LJ in DP (United States of America) [2012] EWCA Civ 365 noted “the frequent changes of the law in immigration field and the changes of Home Office policy guidance which are almost impossible for lawyers to keep up with, let alone ordinary people”; Lord Hope in Alvi [2012] UKSC 33 endorsed the view of the Court of Appeal that “the speed with which the law, practice and policy change in this field is such that litigants must feel they are in an absolute whirlwind and indeed Judges of this court often feel that they are in a whirlwind in which it is very difficult to pause for the reflection which should accompany sound judgement.” Most recently, in SI (India) [2016] EWCA Civ 1255, Rafferty LJ pointed out that the senior judiciary were so concerned about the standard of reasoning in Home Office refusal letters that the Senior President of Tribunals had warned on 16 November 2016 giving evidence to the Constitution Committee of the House of Lords that a decision letter which seriously lacks clarity cannot stand on appeal.

16. On balance I consider that the proceedings below were compromised by material unfairness, because

(a) The Home Office decision maker failed to appreciate the relevance of a contract for services that was before them, and irrelevantly considered that it was essential to provide evidence of website ownership, as was subsequently conceded before the First-tier Tribunal;

(b) The Presenting Officer below plainly misunderstood the Rules, initially defending the appeal on the basis that it was sub-Rule (iii) that was in issue;

(c) It is surprising, when upholding a refusal letter based on a narrow technicality of a single missing document, that the First-tier Tribunal did not raise the question of whether a contract for services had been provided on the application containing the details specified in Appendix A which satisfied the sub-Rule, whatever the dates on the bank documents provided: it seems likely that the Judge did not appreciate that there were indeed two alternative routes by which the sub-Rule could be met.

17. I accordingly find that the decision of the First-tier Tribunal is flawed by a material error of law.

18. I proceed to determine the appeal finally as invited by the parties. I admit the contract for services into evidence given I consider it is appropriate to do so in the interests of justice given the considerations identified above. That contract bears the full names and addresses and signatures of all involved, and sets out arrangements for the provision of recruitment, appraisal, development, performance management, and contract monitoring, reporting and negotiating services, running from 30 June 2014 until 29 June 2015 and thereafter by agreement. That contract accordingly satisfies the requirements of the only Rule which appears to have been truly in the mind of the refusal letter’s author.

19. The appeal is accordingly allowed as the decision of the Secretary of State originally appealed against was contrary to the Immigration Rules.

Signed Date 13 February 2017

Deputy Upper Tribunal Judge Symes