JR/10158/2015
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The decision
IN THE UPPER TRIBUNAL
Give orally at Field House on 5 December 2016
JR/10158/2015
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 5 December 2016
Before
UPPER TRIBUNAL JUDGE peter lane
Between
The Queen
(on the application of)
amanda negbenebor
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr S Karim, instructed by Ineyab Solicitors appeared on behalf of the applicant.
Mr Z Malik, instructed by the Government Legal Department appeared on behalf of the respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE peter lane: This is an application for judicial review of a decision of the respondent taken on 7 July 2015 and maintained subsequently on an administrative review to refuse to grant the applicant leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant pursuant to the points-based Rules.
2. The applicant's immigration history we find conveniently set out in the detailed grounds of defence. There we see that the applicant entered the United Kingdom in September 2010, as a Tier 4 (General) Student. She was granted leave to remain in 2012 as a Tier 1 (Post-Study Work) Migrant. In January 2014, she submitted a Tier 1 (Entrepreneur) application, which was refused with a right of appeal. The applicant exercised her right of appeal but her appeal was dismissed by the First-tier Tribunal in October 2014. She became appeal rights exhausted in respect of that application in May 2015. On 27 May 2015, just within the 28 days afforded by the immigration rules to overstayers who wish to make subsequent applications for leave to remain, she submitted a Tier 1 (Entrepreneur) application. That application was refused and it is that refusal that gives rise to these proceedings.
3. The decision of 7 July 2015 proceeded essentially as follows. The respondent set out the relevant provisions of the Rules, to which I shall make reference in due course. The respondent then considered by reference to each requirement of the Rules whether the points claimed were to be awarded or not. The respondent took the view that a Companies House Current Appointment Report dated 17 January 2004, showing the applicant as registered as a director of a UK company in October 2013, did not meet the requirements of the Rules because it was dated more than three months prior to the application. The decision letter went on to say, in addition, that evidence submitted in relation to advertising material did not cover a continuous period commencing before 11 July 2014 up to no earlier than three months before the date of the application; and that as regards the applicant's membership of a UK trade body known as the AICS, the respondent considered the applicant had not registered with that body until September 2014, which was after 11 July 2014 and therefore failed to meet the requirements of those Rules.
4. The applicant sought an administrative review of the decision. So far as the Companies House material was concerned, the applicant contended that the respondent had failed to apply the provisions of paragraph 245AA(d)(i) and (ii). We shall turn to that provision in due course. The applicant contended that, so far as paragraph 245AA was concerned, the only missing information was the current date. In other words, whether the applicant was still a director of the company was a matter which she said the respondent should have verified by checking with the Companies House website. The applicant also pointed out that the requirement to produce particular relevant advertising material and the requirement to belong to a UK trade body were in fact alternatives under the Rules and so both did not need to be satisfied. Although the applicant failed to comply with membership of a trade body by reference to the AICS, she was a member of a trade body, which we will hereafter describe as CISCO, but which is in fact the "CISCO Certified Network Associate Routing and Switching Body".
5. The outcome of the respondent's administrative review was as follows. The respondent continued to maintain that the applicant failed to meet the relevant requirements of the Rules relating to advertising. It was, however, acknowledged that the applicant had registered with a UK trade body, CISCO, well before the 11 July cut-off date. However, the point was made by the respondent that, even if the applicant would have been awarded points by reference to that criterion, the application would still have fallen for refusal because of problems with the evidence showing the applicant was trading prior to 11 July 2014. The respondent was of the view that the Companies House material was non-compliant. So far as 245AA was concerned, the respondent's position was that documents would not be requested where (as here) a specified document had not been submitted or where the Entry Clearance Officer was satisfied that the application would fall to be refused for other reasons. The original decision was accordingly maintained.
6. The last of the documents to which reference needs to be made before turning to the procedural history is the PAP Pre-Action Protocol response letter of 14 August 2015. Here we see what is asserted by the applicant to be a concession that the Secretary of State had conceded the point about the status of CISCO as a United Kingdom trade body. The respondent, however, said: "please be advised that even if your client were to be awarded points against such criteria, your client's application would still fall for refusal on the basis of evidence provided to confirm that she was trading prior to 11 July 2014". Reference was then made to the document from Companies House as being too early in date to satisfy the requirements of the Rules. The PAP response concluded for similar reasons to those of the original decision and the administrative review decision, that paragraph 245AA was effectively not in play in this case.
7. On 29 January 2016, Upper Tribunal Judge McWilliam granted permission to bring judicial review proceedings. Having recited the history to which I have just made reference, she stated that it was arguable that the decision maker had misapplied paragraph 41-SD(e)(iii) of Appendix A to the Rules, insofar as it was arguable that the applicant needed to produce both the advertising material and the Companies House material. It was also arguable in her view that, had the evidence relating to CISCO been considered, then the respondent would have been satisfied regarding the alternative requirements at 41-SD(e)(iii)(iv). On that basis, Judge McWilliam said that the only outstanding problem with the application at that time was that the Companies House Current Appointment Report was not up-to-date. As to this, Judge McWilliam considered it arguable that paragraph 245AA(d)(iii)(3) applied.
8. As already said, the relevant substantive requirements of the Immigration Rules are to be found at paragraph 41-SD of Appendix A. This is part of the provisions relating to entrepreneur migrants. I shall pass over the issue relating to advertising and marketing material for the reason that it is now common ground that that requirement is not additional to the requirement relating to membership of a United Kingdom trade body. Both parties before me are agreed and I find it to be the case that the requirement in the Rules to be a member of a UK trade body has no definition in the Rules. I will turn to the significance of that in due course.
9. The provision of the Rules relating to the Companies House documentation does require to be set out in extenso. It is as follows:
"(2)(a) if claiming points for being a director of a UK company at the time of his application, a printout from Companies House of the company's filing history page and of a Current Appointment Report, listing the applicant as a director of a company that is actively trading and not dormant, or struck off, or dissolved or in liquidation, and showing the date of his appointment as a director of that company."
And a little further down we find this:
"? the evidence at (1) and (2) above must cover (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 as appropriate and ending on a date not earlier than three months before the date of his application."
There is then an exception which is not relevant.
10. Paragraph 245AA deals with documents that are not submitted with applications in connection with points-based applications. The starting point is that the respondent will only consider documents that have been submitted with the application and will only consider documents after the application when they are submitted in accordance with subparagraph (b). That is where the applicant "has submitted specified documents in which (iv) a document does not contain all the specified information". In those circumstances the respondent may contact the applicant and request the relevant documents.
11. So far as paragraph (d) is concerned, this reads as follows:
"(d) If the applicant has submitted a specified document:
(i) in the wrong format, or
(ii) which is a copy and not an original document, or
(iii) which does not contain all of the specified information but the missing information is verifiable from -
(1) other documents submitted with the application,
(2) the website of the organisation which issued the document, or
(3) the website of the appropriate regulatory body;
the application may be granted exceptionally provided the respondent is satisfied that the specified documents are genuine and the applicant meets all the other requirements."
12. With that necessary detailed introduction we come to the gist of the case. Mr Karim submits that, as for membership of a UK trade body, the respondent has stated both in the administrative review decision and in the Pre-Action Protocol letter that the body known as CISCO was, so far as the respondent was concerned, a UK trade body. Mr Malik submits that the references in those documents do not amount to concessions. He says so because they are phrased in such a way as to make it plain that the Secretary of State was not making an express concession. This was because she did not need to do so. She was merely stating that, regardless of what the position might be regarding UK trade bodies, the application fell to be refused for another reason; namely the "Companies House" reason.
13. I have been taken to certain documentation and case law on this matter. I said I would reserve my position in relation to the cases and the printout from something called British Services which Mr Malik submitted this morning. I heard submissions from both parties de bene esse on those materials. I am satisfied in all the circumstances that there is no material unfairness to the applicant in engaging with them. I make that finding partly because it was evident that, with his usual skill, Mr Karim was able to deal with them entirely satisfactorily from the applicant's standpoint. I also do so because, for the reason I shall give, I am in any event persuaded by the applicant's submissions on the issue of the UK trade body.
14. The reason why I am so persuaded can be simply put. The well-known case of R v Department of Education and Employment ex parte Begbe [2000] 1 WLR 1115, cited in the judgment of Laws LJ in R (Capital Care Services UK Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 1151, is predicated on the basis that there has been a mistake of some kind; in other words, that the position is not what the parties might earlier have considered it to be. In those circumstances, the case law makes it plain that it will, as a general matter, be difficult for a person to persuade a court that the Secretary of State or any other public body should be held to an original mistaken view of a matter. That is particularly so where the view taken relates to matters of law, including the Immigration Rules.
15. In the present case, however, I do not find that the pre-requisite for the application of that doctrine is satisfied. I am not satisfied at all that the respondent has shown that CISCO was not, for present purposes, a UK trade body. The respondent is severely hampered by the absence of any definition of such a body in the Immigration Rules. Mr Malik was compelled to put before me a list of trade bodies to which I have made reference taken from British Services. He says, no doubt on instruction, that this is the list which is consulted by the respondent whenever she is considering whether an applicant is a member of a UK trade body. Mr Karim, however, makes the good point that this is an unofficial list. We know little or nothing of its provenance. We certainly have nothing in writing from the respondent that this is the material to which she goes when deciding whether a body is a UK trade body. In those circumstances, therefore, I find that the applicant is correct and that, if she needed to, the respondent could not in fact go behind her statements that the CISCO body was a UK trade body.
16. The respondent, however, does not need to do so because I turn to what is the determining issue in this case and which the applicant, at least, originally regarded as such; namely, the Companies House matter.
17. Mr Karim seeks to rely on paragraph 245AA. He acknowledges that the document from Companies House could not satisfy the requirements of the Rules, strictly read, because it was a document that bore a date that was not within the requisite three month period. He says, however, that in those circumstances it would have been an easy matter for the respondent to consult the Companies House website where, had the respondent done so, it would have been plain, apparently, that the applicant was still a director of the relevant company.
18. Does paragraph 245AA assist the applicant? The problem I find in relation to paragraph (d) and indeed paragraph (b) is that the provisions on which Mr Karim is forced to rely are in each case ones that contain the requirement that the document "does not contain all of the specified information". The Companies House document is to be found at H42 of the bundle. It is short. It bears the crest and name of Companies House and then refers to itself as being a Current Appointments Report for FAVSOLUTIONS UK LTD. It gives the registered number of that company and it states that the document was created on 17/01/2014 at 11:54:14am. That document in my view plainly is not one that engages paragraph 245AA. It is not a document that fails to contain all of the specified information. On the contrary, it is a document which contains all the information it is designed to contain and which is entirely coherent and complete on its face.
19. The problem with the document is that is dated too early. It is, in other words, the wrong document. It would in my view be going much too far to interpret paragraph 245AA as encompassing documents that are the wrong kind of document because they are produced at points in time other than those required by the Rules. I have had careful regard to what Mr Karim has said, particularly as regards sub-paragraph (d)(iii)(3). That, as we have seen, is a provision that contemplates a decision-maker having access to a website in order to fill in a gap in the missing information. The fact is, however, that even if paragraph (d) applied, the application would be granted only "exceptionally", to quote the word used in the closing lines of paragraph (d). But the essential point is the one I have just made; namely that this is not on its face a document that falls within paragraph 245AA(d).
20. We must recall the purpose of the points-based Rules and the fact that they are intended to be operated by officials at a relatively modest level within government. As the Higher Courts have said from time to time, it would frustrate the purpose of the points-based Rules if examinations of the kind contended for by Mr Karim were to be required. We see that, in particular, from the judgment of the Court of Appeal in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517.
21. Mr Karim seized upon the example given by Mr Malik in oral argument in order to press the case for the application of paragraph (d) of 245AA. Mr Malik said that it perhaps would be permissible to apply that paragraph where the names of the companies in respect of which the applicant was said to be a director were missing but the correct date was not. I place no weight on that example or its repudiation, save that they underscore the point that the kind of document with which paragraph (d) and paragraph (b) are concerned is fundamentally different from the one we find at page H42 of the bundle.
22. For these reasons, therefore, the application falls to be dismissed. I will hear parties on the issue of costs.
?.
Costs
I am asked to make a decision on the costs of this case. Mr Malik asks for the respondent's costs on the basis that the application has been dismissed. Mr Karim makes two submissions - first to ask for the applicant's costs up to yesterday and secondly, if that is not successful, that there be no order as to costs.
I am certainly not with Mr Karim as regards the first of those submissions. It is plain that the issue of whether the applicant's application fell to be dismissed by reference to the Companies House issue has been the stumbling block for the applicant all along and on that issue I have found against her. I am, however, persuaded that in the circumstances of this case there should indeed be no order as to costs. The issue that has taken up a considerable amount of the parties' time and by extension the Tribunal's time - namely the trade body issue - was effectively introduced by the respondent during the course of these proceedings. It has taken unnecessary time and put the applicant to unnecessary expense. In those circumstances, I consider that it would not be right for the respondent to be given her costs. I make no criticism of Mr Malik for his late submission of the case law and British Services website list but it does seem to me that the introduction of this list has served only further to confirm the extent that the respondent has caused the applicant to focus on an issue that was not both a poor one for the respondent but also immaterial.
So there will be no order as to costs. ~~~~0~~~~
Give orally at Field House on 5 December 2016
JR/10158/2015
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 5 December 2016
Before
UPPER TRIBUNAL JUDGE peter lane
Between
The Queen
(on the application of)
amanda negbenebor
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr S Karim, instructed by Ineyab Solicitors appeared on behalf of the applicant.
Mr Z Malik, instructed by the Government Legal Department appeared on behalf of the respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE peter lane: This is an application for judicial review of a decision of the respondent taken on 7 July 2015 and maintained subsequently on an administrative review to refuse to grant the applicant leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant pursuant to the points-based Rules.
2. The applicant's immigration history we find conveniently set out in the detailed grounds of defence. There we see that the applicant entered the United Kingdom in September 2010, as a Tier 4 (General) Student. She was granted leave to remain in 2012 as a Tier 1 (Post-Study Work) Migrant. In January 2014, she submitted a Tier 1 (Entrepreneur) application, which was refused with a right of appeal. The applicant exercised her right of appeal but her appeal was dismissed by the First-tier Tribunal in October 2014. She became appeal rights exhausted in respect of that application in May 2015. On 27 May 2015, just within the 28 days afforded by the immigration rules to overstayers who wish to make subsequent applications for leave to remain, she submitted a Tier 1 (Entrepreneur) application. That application was refused and it is that refusal that gives rise to these proceedings.
3. The decision of 7 July 2015 proceeded essentially as follows. The respondent set out the relevant provisions of the Rules, to which I shall make reference in due course. The respondent then considered by reference to each requirement of the Rules whether the points claimed were to be awarded or not. The respondent took the view that a Companies House Current Appointment Report dated 17 January 2004, showing the applicant as registered as a director of a UK company in October 2013, did not meet the requirements of the Rules because it was dated more than three months prior to the application. The decision letter went on to say, in addition, that evidence submitted in relation to advertising material did not cover a continuous period commencing before 11 July 2014 up to no earlier than three months before the date of the application; and that as regards the applicant's membership of a UK trade body known as the AICS, the respondent considered the applicant had not registered with that body until September 2014, which was after 11 July 2014 and therefore failed to meet the requirements of those Rules.
4. The applicant sought an administrative review of the decision. So far as the Companies House material was concerned, the applicant contended that the respondent had failed to apply the provisions of paragraph 245AA(d)(i) and (ii). We shall turn to that provision in due course. The applicant contended that, so far as paragraph 245AA was concerned, the only missing information was the current date. In other words, whether the applicant was still a director of the company was a matter which she said the respondent should have verified by checking with the Companies House website. The applicant also pointed out that the requirement to produce particular relevant advertising material and the requirement to belong to a UK trade body were in fact alternatives under the Rules and so both did not need to be satisfied. Although the applicant failed to comply with membership of a trade body by reference to the AICS, she was a member of a trade body, which we will hereafter describe as CISCO, but which is in fact the "CISCO Certified Network Associate Routing and Switching Body".
5. The outcome of the respondent's administrative review was as follows. The respondent continued to maintain that the applicant failed to meet the relevant requirements of the Rules relating to advertising. It was, however, acknowledged that the applicant had registered with a UK trade body, CISCO, well before the 11 July cut-off date. However, the point was made by the respondent that, even if the applicant would have been awarded points by reference to that criterion, the application would still have fallen for refusal because of problems with the evidence showing the applicant was trading prior to 11 July 2014. The respondent was of the view that the Companies House material was non-compliant. So far as 245AA was concerned, the respondent's position was that documents would not be requested where (as here) a specified document had not been submitted or where the Entry Clearance Officer was satisfied that the application would fall to be refused for other reasons. The original decision was accordingly maintained.
6. The last of the documents to which reference needs to be made before turning to the procedural history is the PAP Pre-Action Protocol response letter of 14 August 2015. Here we see what is asserted by the applicant to be a concession that the Secretary of State had conceded the point about the status of CISCO as a United Kingdom trade body. The respondent, however, said: "please be advised that even if your client were to be awarded points against such criteria, your client's application would still fall for refusal on the basis of evidence provided to confirm that she was trading prior to 11 July 2014". Reference was then made to the document from Companies House as being too early in date to satisfy the requirements of the Rules. The PAP response concluded for similar reasons to those of the original decision and the administrative review decision, that paragraph 245AA was effectively not in play in this case.
7. On 29 January 2016, Upper Tribunal Judge McWilliam granted permission to bring judicial review proceedings. Having recited the history to which I have just made reference, she stated that it was arguable that the decision maker had misapplied paragraph 41-SD(e)(iii) of Appendix A to the Rules, insofar as it was arguable that the applicant needed to produce both the advertising material and the Companies House material. It was also arguable in her view that, had the evidence relating to CISCO been considered, then the respondent would have been satisfied regarding the alternative requirements at 41-SD(e)(iii)(iv). On that basis, Judge McWilliam said that the only outstanding problem with the application at that time was that the Companies House Current Appointment Report was not up-to-date. As to this, Judge McWilliam considered it arguable that paragraph 245AA(d)(iii)(3) applied.
8. As already said, the relevant substantive requirements of the Immigration Rules are to be found at paragraph 41-SD of Appendix A. This is part of the provisions relating to entrepreneur migrants. I shall pass over the issue relating to advertising and marketing material for the reason that it is now common ground that that requirement is not additional to the requirement relating to membership of a United Kingdom trade body. Both parties before me are agreed and I find it to be the case that the requirement in the Rules to be a member of a UK trade body has no definition in the Rules. I will turn to the significance of that in due course.
9. The provision of the Rules relating to the Companies House documentation does require to be set out in extenso. It is as follows:
"(2)(a) if claiming points for being a director of a UK company at the time of his application, a printout from Companies House of the company's filing history page and of a Current Appointment Report, listing the applicant as a director of a company that is actively trading and not dormant, or struck off, or dissolved or in liquidation, and showing the date of his appointment as a director of that company."
And a little further down we find this:
"? the evidence at (1) and (2) above must cover (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 as appropriate and ending on a date not earlier than three months before the date of his application."
There is then an exception which is not relevant.
10. Paragraph 245AA deals with documents that are not submitted with applications in connection with points-based applications. The starting point is that the respondent will only consider documents that have been submitted with the application and will only consider documents after the application when they are submitted in accordance with subparagraph (b). That is where the applicant "has submitted specified documents in which (iv) a document does not contain all the specified information". In those circumstances the respondent may contact the applicant and request the relevant documents.
11. So far as paragraph (d) is concerned, this reads as follows:
"(d) If the applicant has submitted a specified document:
(i) in the wrong format, or
(ii) which is a copy and not an original document, or
(iii) which does not contain all of the specified information but the missing information is verifiable from -
(1) other documents submitted with the application,
(2) the website of the organisation which issued the document, or
(3) the website of the appropriate regulatory body;
the application may be granted exceptionally provided the respondent is satisfied that the specified documents are genuine and the applicant meets all the other requirements."
12. With that necessary detailed introduction we come to the gist of the case. Mr Karim submits that, as for membership of a UK trade body, the respondent has stated both in the administrative review decision and in the Pre-Action Protocol letter that the body known as CISCO was, so far as the respondent was concerned, a UK trade body. Mr Malik submits that the references in those documents do not amount to concessions. He says so because they are phrased in such a way as to make it plain that the Secretary of State was not making an express concession. This was because she did not need to do so. She was merely stating that, regardless of what the position might be regarding UK trade bodies, the application fell to be refused for another reason; namely the "Companies House" reason.
13. I have been taken to certain documentation and case law on this matter. I said I would reserve my position in relation to the cases and the printout from something called British Services which Mr Malik submitted this morning. I heard submissions from both parties de bene esse on those materials. I am satisfied in all the circumstances that there is no material unfairness to the applicant in engaging with them. I make that finding partly because it was evident that, with his usual skill, Mr Karim was able to deal with them entirely satisfactorily from the applicant's standpoint. I also do so because, for the reason I shall give, I am in any event persuaded by the applicant's submissions on the issue of the UK trade body.
14. The reason why I am so persuaded can be simply put. The well-known case of R v Department of Education and Employment ex parte Begbe [2000] 1 WLR 1115, cited in the judgment of Laws LJ in R (Capital Care Services UK Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 1151, is predicated on the basis that there has been a mistake of some kind; in other words, that the position is not what the parties might earlier have considered it to be. In those circumstances, the case law makes it plain that it will, as a general matter, be difficult for a person to persuade a court that the Secretary of State or any other public body should be held to an original mistaken view of a matter. That is particularly so where the view taken relates to matters of law, including the Immigration Rules.
15. In the present case, however, I do not find that the pre-requisite for the application of that doctrine is satisfied. I am not satisfied at all that the respondent has shown that CISCO was not, for present purposes, a UK trade body. The respondent is severely hampered by the absence of any definition of such a body in the Immigration Rules. Mr Malik was compelled to put before me a list of trade bodies to which I have made reference taken from British Services. He says, no doubt on instruction, that this is the list which is consulted by the respondent whenever she is considering whether an applicant is a member of a UK trade body. Mr Karim, however, makes the good point that this is an unofficial list. We know little or nothing of its provenance. We certainly have nothing in writing from the respondent that this is the material to which she goes when deciding whether a body is a UK trade body. In those circumstances, therefore, I find that the applicant is correct and that, if she needed to, the respondent could not in fact go behind her statements that the CISCO body was a UK trade body.
16. The respondent, however, does not need to do so because I turn to what is the determining issue in this case and which the applicant, at least, originally regarded as such; namely, the Companies House matter.
17. Mr Karim seeks to rely on paragraph 245AA. He acknowledges that the document from Companies House could not satisfy the requirements of the Rules, strictly read, because it was a document that bore a date that was not within the requisite three month period. He says, however, that in those circumstances it would have been an easy matter for the respondent to consult the Companies House website where, had the respondent done so, it would have been plain, apparently, that the applicant was still a director of the relevant company.
18. Does paragraph 245AA assist the applicant? The problem I find in relation to paragraph (d) and indeed paragraph (b) is that the provisions on which Mr Karim is forced to rely are in each case ones that contain the requirement that the document "does not contain all of the specified information". The Companies House document is to be found at H42 of the bundle. It is short. It bears the crest and name of Companies House and then refers to itself as being a Current Appointments Report for FAVSOLUTIONS UK LTD. It gives the registered number of that company and it states that the document was created on 17/01/2014 at 11:54:14am. That document in my view plainly is not one that engages paragraph 245AA. It is not a document that fails to contain all of the specified information. On the contrary, it is a document which contains all the information it is designed to contain and which is entirely coherent and complete on its face.
19. The problem with the document is that is dated too early. It is, in other words, the wrong document. It would in my view be going much too far to interpret paragraph 245AA as encompassing documents that are the wrong kind of document because they are produced at points in time other than those required by the Rules. I have had careful regard to what Mr Karim has said, particularly as regards sub-paragraph (d)(iii)(3). That, as we have seen, is a provision that contemplates a decision-maker having access to a website in order to fill in a gap in the missing information. The fact is, however, that even if paragraph (d) applied, the application would be granted only "exceptionally", to quote the word used in the closing lines of paragraph (d). But the essential point is the one I have just made; namely that this is not on its face a document that falls within paragraph 245AA(d).
20. We must recall the purpose of the points-based Rules and the fact that they are intended to be operated by officials at a relatively modest level within government. As the Higher Courts have said from time to time, it would frustrate the purpose of the points-based Rules if examinations of the kind contended for by Mr Karim were to be required. We see that, in particular, from the judgment of the Court of Appeal in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517.
21. Mr Karim seized upon the example given by Mr Malik in oral argument in order to press the case for the application of paragraph (d) of 245AA. Mr Malik said that it perhaps would be permissible to apply that paragraph where the names of the companies in respect of which the applicant was said to be a director were missing but the correct date was not. I place no weight on that example or its repudiation, save that they underscore the point that the kind of document with which paragraph (d) and paragraph (b) are concerned is fundamentally different from the one we find at page H42 of the bundle.
22. For these reasons, therefore, the application falls to be dismissed. I will hear parties on the issue of costs.
?.
Costs
I am asked to make a decision on the costs of this case. Mr Malik asks for the respondent's costs on the basis that the application has been dismissed. Mr Karim makes two submissions - first to ask for the applicant's costs up to yesterday and secondly, if that is not successful, that there be no order as to costs.
I am certainly not with Mr Karim as regards the first of those submissions. It is plain that the issue of whether the applicant's application fell to be dismissed by reference to the Companies House issue has been the stumbling block for the applicant all along and on that issue I have found against her. I am, however, persuaded that in the circumstances of this case there should indeed be no order as to costs. The issue that has taken up a considerable amount of the parties' time and by extension the Tribunal's time - namely the trade body issue - was effectively introduced by the respondent during the course of these proceedings. It has taken unnecessary time and put the applicant to unnecessary expense. In those circumstances, I consider that it would not be right for the respondent to be given her costs. I make no criticism of Mr Malik for his late submission of the case law and British Services website list but it does seem to me that the introduction of this list has served only further to confirm the extent that the respondent has caused the applicant to focus on an issue that was not both a poor one for the respondent but also immaterial.
So there will be no order as to costs. ~~~~0~~~~