Tribunal decisions

The decision

Case No: JR-2025-LON-000662
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

5 February 2026

Before:

UPPER TRIBUNAL JUDGE PINDER

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Between:

THE KING
on the application of

SALINA AKTER (1)
TASFIAH RAHMAN (2)
GOLAM RAHMAN (3)
TAMARA RAHMAN (4)
ARAFAT ABRAR RAHMAN (5)
Applicants
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr Z Malik KC
(instructed by David Wyld & Co Solicitors), for the Applicants

Mr M Howarth
(instructed by the Government Legal Department) for the Respondent

Hearing date: 23rd October 2025

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J U D G M E N T

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Judge Pinder:

A. Introduction

1. This is an application for judicial review, in which the Applicants seek to challenge the Respondent’s decisions dated 14th April 2024 and 13th January 2025 to refuse the Applicants’ applications for Indefinite Leave to Remain (‘ILR’) as Tier 1 (Entrepreneur) Migrants and Dependants and to maintain those refusals on administrative review.

B. Factual background and procedural history

2. The factual background and procedural history is well known to both parties and I do not rehearse this in detail.

3. The First and Second Applicant, Mrs Salina Akter and Ms Tasfiah Rahman, are the main Applicants and those who held Tier 1 (Entrepreneur) Migrant leave to remain. They are mother and daughter. The remaining Third to Fifth Applicants, are dependants of the first two Applicants. The Third Applicant is the husband of the First Applicant. The Fourth and Fifth Applicants are the remaining children of Mrs Akter and her husband, Mr Rahman.

4. The Applicants are all citizens of Bangladesh and arrived in the UK with entry clearance as Tier 1 (Entrepreneur) Migrants/Dependants, with leave valid from 17th September 2020 to 17th January 2024. They applied for ILR on 2nd January 2024, through the accelerated route to ILR available to Tier 1 Entrepreneurs based on the two main Applicants and their business creating at least 10 full-time employments for settled persons during the course of their leave to remain. These applications were initially refused by the Respondent on 14th April 2024.

5. Following the Applicants’ administrative review applications, the Respondent maintained her decisions to refuse and on 13th January 2025 issued her administrative review decisions. These decisions also amended the initial decisions to refuse as the Respondent accepted that those initial decisions contained errors.

6. The sole reason for refusal relates to the genuineness requirements contained in paragraph 245DF(f) of the Immigration Rules. In particular, the Respondent’s concerns are that the claimed 10 full-time employment positions created in order to qualify for accelerated ILR are not genuine positions.

7. The Applicants’ business, established in the UK, is Salar Impex Ltd. This company is a business-to-business intermediary in the import-export business, brokering industrial minerals and chemical inputs from suppliers in China and Vietnam to buyers in Bangladesh. The business is an external-facing entity, trading internationally rather than a UK domestic retail or wholesale business.

8. On 5th February 2024, while the Applicants’ applications for ILR were pending under consideration, the Respondent contacted the Applicants to request further information. This request also related to other matters that have not been controversial within these proceedings, including evidence of the Applicants’ business’ trading activities. As far as the 10 positions are concerned, the Respondent requested the following:

“4. A description of the job roles used to claim points for the Job Creation attribute of your application. Please provide duties and responsibilities for each employee.

5. Evidence of work undertaken by each employee claimed in your application.

6. Evidence of contact between you/your business and each employee claimed in your application – please submit copies of emails between you/your business and each employee for each month of employment claimed in your application.”

9. On 16th February 2024, the Applicants’ solicitors responded to the Respondent’s request including the following information in direct response to the points set out immediately above:

“4. Job duties and responsibilities for each employee are submitted.

5. The business maintains hard copy communication and records with employees. The practice has been to conduct informal monthly in-person meetings, where employees are assigned instructions, and progress reports and updates given. The directors started conducting quarterly formal meetings in April 2023, whereby proper formal meeting minutes have been kept, including details of the responsibilities assigned to employees, with any deadlines. Usually, two weeks prior to a meeting the notice of meeting with agenda is announced to employees. Copies of the quarterly notices and minutes are submitted.

Prior to recruitment of the UK staff the liaison office in Bangladesh had responsibility through the authorisation of the directors to correspond with the bank on behalf of Salar Impex. Some of the correspondence with Habib Bank AG Zurich Plc and Nashidur Rahman in the Bangladesh office has been submitted to evidence this along with Payment Advices to Habid [sic] Bank.

6. As previously referred to the business has been faced with a difficult predicament from the very beginning of its entry to the UK due to the global downturn in commerce and the lasting effects the covid 19 pandemic presented. Despite this, the business had to embark upon the requirements of Tier 1 Visa by setting up the office, recruiting staff over time and investing the requisite amount of money into the business. Once the business started its recruitment of staff it was the norm to communicate in person. The directors accept that they have not executed full IT based communication in the workplace, mainly due to the fact that the required investment has already been utilised in the business. As the business continues to progress the intention is to become fully digitalised and create a culture of email communication among the employees.”

10. Thereafter, the Respondent was not satisfied that the 10 positions claimed to have been created by the main Applicants and to be in operation, so to speak, for at least 12 months, were genuine employments. I have set out further details of the Respondent’s reasons for refusal and her reasons for maintaining her decisions following administrative review in the section immediately below.

11. Following receipt of the Respondent’s administrative review decisions, the Applicants engaged with the Respondent in pre-action correspondence, which did not resolve the issues in dispute between the parties. The Applicants’ judicial review application was issued on 4th March 2025. They pursue three grounds of challenge:

(1) The Respondent failed to take into consideration relevant evidence, provided inadequate reasons and/or reached an irrational conclusion;
(2) The Respondent misconstrued Paragraph 245DF(f) of the Immigration Rules and adopted a legally flawed approach to its application;
(3) The Respondent acted in a manner that was procedurally unfair.

12. The Applicants were initially refused permission to apply for judicial review by the Upper Tribunal on the papers. Upper Tribunal Judge Blundell considered on 30th June 2025, following an oral reconsideration hearing, that each of the grounds was arguable.

13. Following the filing and service of the Respondent’s Detailed Grounds of Defence, the matter was listed for a substantive hearing before me on 23rd October 2025.

14. I confirm that I have considered the trial and authorities bundles (‘TB’ and ‘AB’) very carefully. I heard oral submissions from both parties’ advocates, Mr Malik KC for the Applicants and Mr Howarth for the Respondent.

15. I am grateful to both advocates, and to those instructing them, for their comprehensive and very helpful written and oral submissions and trial bundles.

C. The impugned decisions of the Respondent

16. Since the Respondent has refused ILR to the Third, Fourth, and Fifth Applicants in line with the main Applicants, I only focus on the Respondent’s decisions relating to the two main Applicants.

17. As briefly referred to above, the Respondent’s decisions dated 14th April 2024 to refuse the applications were subsequently amended following the Respondent’s administrative review. No issue is taken with the amendment. I cite below therefore from the amended versions:

“You have applied for Indefinite leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) migrant, but the Secretary of State is not satisfied on the balance of probabilities that:

You have genuinely created the equivalent of 10 full time jobs, for which the applicant is claiming points in Table 6 of Appendix A.

In making the assessment above the following factors have been considered, as per paragraph 245DD(g) of the Immigration Rules:

(i) the evidence that you submitted;
(ii) the viability and credibility of the source of the money referred to in Table 6 of Appendix A;
(iii) the credibility of the financial accounts of the business or businesses;
(iv) the credibility of your business activity in the UK, including when you had leave as a Tier 1 (Entrepreneur) Migrant;
(v) the credibility of the job creation for which you are claiming points in Table 6 of Appendix A;
(vii) if the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained; and
(viii) any other relevant information.

In making the decision to refuse your application, careful consideration has been given to the following:

(i) the evidence that you submitted;

Business bank account statements
Unaudited accounts
Companies House
HM Revenue & Customs documentation
Proof of employee settled worker status documents
Wage/pay slips to cover total period of employment created for each worker
Personal bank statements
Supporting documents
Further supporting evidence submitted via email on 16 February 2024

(v) the credibility of the job creation for which you are claiming points in Table 6 of Appendix A;

You have applied for accelerated settlement as a Tier 1 Entrepreneur on the basis of having created the equivalent of at least 10 full time jobs at your business, named Salar Impex Ltd, for settled workers in the UK and that these jobs have existed for at least 12 months during the last period of leave granted to you as a Tier 1 (Entrepreneur) Migrant.
(…)
You claim in your application form to have employed the equivalent of 10 full time settled workers at Salar Impex Ltd. In support of your application, you have provided HM Revenue & Customs documentation, proof of employee settled worker status documents and pay slips to cover the period of employment created for each worker.

We wrote to you on 05 February 2024 to request the following information:

(…)1

Your representatives replied via email on 16 February 2024. You did not provide any evidence of work undertaken by the employees included in your application form and did not provide copies of emails between you/your business and any of the employees included in your application form. Your representatives stated the following in their correspondence of 16 February 2024:

(…)2

We are not satisfied that the 10 jobs you have claimed in your application, in order to meet the accelerated ILR requirements, are genuine jobs that have existed for the 12 + months claimed in your application. The fact that you have been unable to evidence any work undertaken by any of your employees or demonstrate any electronic communication between you or your business and any employee, such as emails, whatsapp messages or collaborative software communication records, casts doubt on the credibility of the jobs claimed in your application.

We note that your representatives have provided a statement to account for why this is the case, however we are not satisfied that the reasons provided are sufficiently compelling. Your representative claims that you have “not executed full IT based communication in the workplace, because the investment has already been utilised in the business”. Your representative also states that “as the business continues to progress the intention is to become fully digitalised and create a culture of email communication among the employees”. However, emails accounts from providers such as Google and Microsoft are free and as such would incur no cost to your business. Furthermore, based upon the job roles created and the job descriptions you provided for employees, it is not credible that jobs of the nature claimed in your application form (Business Developer, Logistics & Commercial Manager, HR & Admin Manager, Chief Sales & Marketing Manager, Chief Supply Chain Officer, Accounts Manager, Head of Business Development, Export & Import Administrator, Negotiator) could be carried out without access to electronic communication methods such as email. This is further evidenced by the job descriptions you submitted by email on 16 February 2024. It is not credible that the following duties and responsibilities for the below roles could be carried out over a period of 12 months without there being significant electronic records of the work carried out and electronic records of communication between your staff and clients:

(… The Respondent then lists several of the claimed employee job titles and job descriptions).

It is not credible that your employees have carried out the duties and responsibilities as listed above for over 12 months yet cannot evidence any work undertaken or email sent in the course of carrying out the above duties. The business is heavily reliant on clients, both in the UK and overseas, it is not credible that your employees carried out all contact via phone calls and were not required to draft information, send emails and review electronic documents and reports of the nature outlined in the job descriptions. We are therefore not satisfied that you have genuinely created the jobs claimed in your application.

Based on the above consideration the Secretary of State is therefore refusing your application because you have not met the genuineness test at paragraph 245DF(f), when assessing, on the balance of probabilities, the points listed at paragraph 245DF(g) and 245DD(i) of the Immigration Rules.”

18. The Respondent’s administrative review decisions dated 13th January 2025 maintained the above refusals. In summary, the Respondent set out that the Applicants were required, under the relevant Immigration Rules, to demonstrate the genuineness of their job creation and that the refusals in this respect were maintained.

19. The Respondent again relied on Paragraph 245DF(g). This was in response to the Applicant’s grounds for administrative review that the Respondent had not suggested that their business was not genuine. Further, that there was no requirement for an applicant to provide electronic communication between employer and employee, such as emails, WhatsApp messages or collaborative software communication. The Respondent maintained her position that assessing, on the balance of probabilities, the genuineness of the business would include taking into account the credibility of job creation.

20. The Respondent reminded that the onus rested on the Applicants to provide sufficient evidence to demonstrate that they meet the relevant requirements and it was therefore reasonable for the original decision-maker to assess the credibility of the job creation and to request further evidence to support the credibility of any such job creation. The Respondent concluded that having reviewed the circumstances of the case, she was satisfied that it was reasonable for the original decision-maker to have reached the conclusions that they had. The Respondent also reminded the Applicants that they were unable to provide evidence of work completed and the Applicants’ explanation was not compelling. Nor did the Respondent accept that there had been procedural unfairness.

21. I have extracted and summarised the above from the Respondent’s decisions issued to the First Applicant as the decisions issued to the Second Applicant are in the exact same terms. It is these decisions that are under challenge within these proceedings.

D. Legal Framework

22. I only set out the relevant provisions of the Immigration Rules.

23. Paragraph 245DF of the Immigration Rules, so far as is relevant to these proceedings, provides as follows (as at the time of the application made):

“245DF. Requirements for indefinite leave to remain

To qualify for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) DELETED

(b) The applicant must not fall for refusal under Part Suitability and must not be an illegal entrant.

(c) The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A.
(d) The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.

(e) The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

(f) The Secretary of State must be satisfied that:

(i) the applicant has established, taken over or become a director of one or more genuine businesses in the UK, and has genuinely operated that business or businesses while he had leave as a Tier 1 (Entrepreneur) Migrant; and

(ii) the applicant has genuinely invested the money referred to in Table 6 of Appendix A into one or more businesses in the UK to be spent for the purpose of that business or businesses; and

(iii) the applicant genuinely intends to continue operating one or more businesses in the UK.

(g) In making the assessment in (f), the Secretary of State will assess the balance of probabilities. The Secretary of State may take into account the following factors:

(i) the evidence the applicant has submitted;

(ii) the viability and credibility of the source of the money referred to in Table 6 of Appendix A;

(iii) the credibility of the financial accounts of the business or businesses;

(iv) the credibility of the applicant’s business activity in the UK, including when he had leave as a Tier 1 (Entrepreneur) Migrant;

(v) the credibility of the job creation for which the applicant is claiming points in Table 6 of Appendix A;

(vii) if the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained; and

(viii) any other relevant information.

(h) The Secretary of State reserves the right to request additional information and evidence to support the assessment in (f), and to refuse the application if the information or evidence is not provided. Any requested documents must be received by the Secretary of State at the address specified in the request within 28 calendar days of the date of the request.

(i) If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.

(j) The Secretary of State may decide not to carry out the assessment in (f) if the application already falls for refusal on other grounds, but reserves the right to carry out this assessment in any reconsideration of the decision.

(k) The applicant must, unless he provides a reasonable explanation, comply with any request made by the Secretary of State to attend for interview.

(l) The application for indefinite leave to remain must have been made: (i) (ii) before 6 July 2027, if the applicant has ever previously had leave as a Tier 1 (Graduate Entrepreneur) Migrant; or before 6 April 2025, in all other cases.”

E. Discussion, Analysis and Conclusions

24. I deal with each of the Applicants’ grounds in turn, summarising the submissions and evidence before me and setting out my conclusions thereafter.

The Applicants’ first ground – relevant evidence, reasons and irrationality

25. In support of this ground, the Applicants emphasised that the Respondent had failed to consider the documents that had been provided to her on 16th February 2024, in response to her request, when stating that in the Respondent’s view, the Applicants had been unable to evidence “any work undertaken by any of (their) employees”.

26. It was argued by Mr Malik KC on behalf of the Applicants that the documents submitted plainly evidenced activities undertaken by the employees, for example in attending various work-related meetings and the tasks undertaken by them as noted in the minutes. Mr Malik KC submitted that the Respondent had failed to take into account that evidence and/or engage with this in a reasoned manner.

27. Mr Malik KC further submitted that it was for the Applicants to decide how to run their business and how to communicate with each other at given times. The fact that there had not been e-mail correspondence between the Applicants and each of the employees was not indicative, in his submissions, that the business itself was not genuine nor that the jobs creation themselves were not credible.

28. Mr Howarth, on behalf of the Respondent, asked me to consider that the Respondent had drawn a rational inference from the absence of what he termed “any internal outputs or communications for 10 senior international-facing roles”. Further, that this was all the more so in light of there having been targeted requests, such as that dated 5th February 2024, while the applications were pending under consideration.

29. Mr Howarth also refuted that the Respondent had somehow elevated the need to produce documents in the form of e-mails to a mandatory requirement. With regards to the meeting notices and minutes, Mr Howarth submitted that the Respondent was entitled to place limited weight on what he described to be late-collated minutes, which had been generated in a word document, by no identified employee. Neither were these documents accompanied by any transmission metadata, circulation trails, or any link to employee-level performance over the claimed 12 months. Mr Howarth also submitted that these did not substitute for documents such as the Real-Time Information (‘RTI’), payslips, contracts and timesheets, which were ordinarily expected where 10 posts are said to have been created and maintained.

30. I take this last point first, which also formed the basis of discussions during the hearing. It was not in issue that the Applicants had submitted in support of their application the specified evidence to demonstrate that they and their business had created the claimed 10 posts. These include the Real-Time Information (‘RTI’), which is the system used whereby employers report employee payroll information, such as PAYE and National Insurance contributions to HMRC with each payment made. The Applicants also submitted the required payslips, contracts and other mandatory specified evidence for each full-time post claimed to have been created.

31. Importantly, the Respondent has not disputed any of this other evidence and does not therefore dispute inter alia that each employee has been paid by the Applicants’ business for a period of at least 12 months, that all tax and national insurance obligations have been discharged in respect of each employment created and that each employee is a settled person within the meaning of the relevant rule.

32. Having carefully considered the parties’ competing submissions on this ground, I would accept that the provision of job descriptions is not sufficient to demonstrate the credibility of the job creation. However, it remains the case that the Respondent has not raised any concern, in any of her decisions, nor subsequently as confirmed by Mr Howarth before me, in relation to the Applicants’ business, its activities and its trading. Similarly, as I have noted above, nor has the Respondent sought to dispute the very detailed information and documentary evidence that was submitted by the Applicants to confirm the creation of 10 full-time employments and the salary payments made in respect of each of these positions.

33. Thus, I understand the Respondent’s case to be that because there is an absence in her view of “any evidence of work being undertaken” and an absence of inter-employer/employee communications, the Respondent is not satisfied that the Applicants have demonstrated that the claimed jobs have been genuinely created. In other words, the relevant persons may be employed and may be paid by the Applicants’ business but they are not genuinely carrying out the duties for which they are employed and paid.

34. In this respect, I am firstly satisfied that the Respondent has failed to take relevant matters into consideration. Whilst Mr Howarth has made submissions on the meeting minutes within his skeleton argument, the Respondent has simply not engaged with this documentary evidence in her decisions. There is no mention of the minutes, let alone her reasons for either rejecting these or for attaching little weight to these. The Respondent stated in her initial refusal decisions that the Applicants, in response to her request of 5th February 2024, “did not provide any evidence of work undertaken by the employees including in (the Applicants’) application form and did not provide copies of e-mails between (the Applicants/their) business and any of the employees included in the application form”. The Respondent then repeated that “(t)he fact that (the Applicants) have been unable to evidence any work undertaken by any of (their) employees or demonstrate any electronic communication between (them and their) business and any employee, such as emails, whatsapp messages or collaborative software communication records, casts doubt on the credibility of the jobs claimed in your application”.

35. In her Summary Grounds of Defence, the Respondent noted the submission of meeting minutes at para 22 and asserted at para 24 that she had carefully assessed all the evidence and further submissions provided by the Applicants but she does not state anything further about the minutes.

36. In her Detailed Grounds of Defence, the Respondent submitted at para 35 that the administrative review decisions specifically addressed the meeting minutes, seemingly with those decisions noting that “consideration has been given to the points that you have raised”. The author also submitted that the decisions explained why the evidence was insufficient to demonstrate genuine job creation. I extract for ease of reference, this particular passage of the administrative review decisions:

“Consideration has been given to the points that you have raised, however the immigration rules require an assessment of the genuineness of your business which will include your job creation. Having reviewed the circumstances of your case I am satisfied that it was reasonable for the original decision maker to request further information other than job titles and job descriptions in order to assess the credibility of your job creation.

Furthermore, I am satisfied that the original decision maker gave due consideration to the explanation that you provided following the request for evidence of work completed and correspondence, however you were unable to provide evidence of work completed and your explanation was not compelling and it was therefore reasonable for the original decision maker to raise concerns regarding job creation. I do not therefore accept your assertion that the refusal was irrational.”

37. Not only is there no reference to the meeting minutes in the passage cited above but the only reference made is to the job titles and job descriptions and the Respondent being of the view that it was reasonable to expect further information. As I have briefly addressed above at para 32, had the Applicants only provided job titles and job descriptions to the Respondent, I would agree. However, further information, in the form of meeting minutes, had been furnished and there is simply no assessment of that nor any explanation as to why that was insufficient. Instead the Respondent asserted that the Applicants were unable to “provide evidence of work completed”. It is trite to note that meeting minutes are evidence of working being completed.

38. Perhaps in recognition of this, the Respondent has also sought to rely on a witness statement from Mr Paul Martin, Executive Officer, at the Home Office, referred to at para 36 of her Detailed Grounds of Defence. In that statement, Mr Martin, who was the relevant caseworker assigned to the Applicants’ application, stated at para 12 that he “noted the provision of meeting minutes submitted by the applicant/immigration advisor in their emails of 16 February, however (he) did not feel that the provision of meeting minutes in a Word document, which included names of attendees, to be a reliable form of evidence to demonstrate employees carrying out their jobs or to be a dependable form of evidence to establish communication between the business/the applicant and the employees.” He also noted the absence of “any other form of evidence (such as records of emails to document the dissemination of the minutes) which could have been used to establish when the meeting minutes were circulated and provide a time-stamped record of when/how the minutes were shared.”

39. It is not open, in my view, to the Respondent to raise within these proceedings, post-decision, that the meeting minutes were not accompanied by transmission metadata or evidence of their circulation. Firstly, it is well-established that ex post facto justifications are generally not permitted. In other words, reasons adduced after issuance of proceedings cannot generally cure a deficiency in decision-making. I consider that the matters that Mr Martin has now addressed in his witness statement amount to such ex post facto justification. This is because, as I have considered above, there is no reference to the meeting minutes in the Respondent’s initial decisions and only a fleeting mention of these in her subsequent administrative review decisions.

40. Secondly, the Respondent has not alleged bad faith in respect of any of the documents submitted by the Applicants relating to their business, its activities and trading, or as I have addressed above, relating to the relevant employments, such as the payslips and other documents submitted. With that in mind, it is unreasonable in my view to expect the Applicants, when not expressly requested to do so, to have also submitted of their own initiative meta data or any other circulation evidence to accompany the minutes themselves.

41. For the above reasons, I consider that the failure of the Respondent to either take into consideration the meeting minutes and/or her failure to provide any reasons for rejecting or attaching little weight to these amounts to a public law error.

42. It is also irrational and/or inadequately reasoned of the Respondent to have concluded that “it is not credible that jobs of the nature claimed in (the) application form (Business Developer, Logistics & Commercial Manager, HR & Admin Manager, Chief Sales & Marketing Manager, Chief Supply Chain Officer, Accounts Manager, Head of Business Development, Export & Import Administrator, Negotiator) could be carried out without access to electronic communication methods such as email.” Similarly, that “it is not credible that the following duties and responsibilities for the below roles (listed in the decisions) could be carried out over a period of 12 months without there being significant electronic records of the work carried out and electronic records of communication between your staff and clients.”

43. This is because the Respondent’s request was very specific: for copies of e-mails between the Applicants/their business and their employees – not between employees and clients.

44. I agree that it is not for the Respondent to determine how the Applicants are to conduct their communications with their employees and the Applicants explained in their letter of 16th February 2024 that the Applicants communicate with their employees in person and have yet to instil intra-business e-mail communications. That may be surprising to the Respondent but similarly the Respondent does not address the voluminous evidence of work being undertaken by the business, which includes electronic forms of communication and which was placed before her as part of the application – see TB [328] to [716] with e-mails between [~.gmail.com] to banks, invoices, letters of credit, swift messages and so on. I am satisfied for the above reasons that the Respondent’s decision-making failed to take relevant matters into account and/or is irrational. For these reasons, the Applicants’ first ground of challenge succeeds.

Applicants’ second ground of challenge – construction and application of the relevant Immigration Rules

45. As I have summarised above, the Respondent does not suggest that the Applicants’ business is not genuine or that the required funds have not been genuinely invested. Similarly, there is no suggestion from the Respondent that the Applicants do not intend to continue operating the business in the UK. The Respondent has however invoked Paragraph 245DF(f) when refusing ILR to the Applicants. As can be seen from the extract of the Immigration Rules above at para 23, this relates solely – and I paraphrase - to whether or not an applicant has (i) genuinely operated that business; (ii) has genuinely invested the required funds; and (iii) genuinely intends to continue operating one or more businesses in the UK.

46. To support her decision to refuse under para 245DF(f), the Respondent relies on para 245DF(g)(v) which relates to the credibility of the claimed job creation. In their challenge, the Applicants have argued that para 245DF(f) does not impose any requirement relating to the creation of jobs. Whilst this is correct, it is clear that the Respondent is entitled to look at the credibility of the job creation when assessing whether or not the matters listed in para 245DF(f) are demonstrated by an applicant.

47. The difficulty however is that the Respondent does not import her concerns in relation to the claimed job creation into a refusal that the Applicants fall foul of any of the matters listed under para 245DF(f). The Respondent appears therefore to have treated the matters listed under para 245DF(g) as free-standing and not to aid her assessment of those contained in para 245DF(f). This is contrary to the very words included at (g) (my emphasis):

“In making the assessment in (f), the Secretary of State will assess the balance of probabilities. The Secretary of State may take into account the following factors: (…)”

48. To this extent, I agree that the Respondent’s refusal demonstrates a legally flawed approach: she has invoked concerns under para 245DF(g) whilst on the face of the decisions, and as confirmed before me, being satisfied that the Applicants have established and operated a genuine business in the UK, have genuinely invested the required funds and genuinely intend to continue operating such a business.

49. Mr Howarth submitted that the Applicants are attempting to silo para 245DF(f) from 245DF(c), (g)(v) and (i), which is misconceived because 245DF(g)(v) expressly embeds ‘credibility of job creation’. The latter is clearly correct, in that para 245DF(g)(v) expressly permits the Respondent to assess the credibility of job creation. However, it is para 245DF(f) that sets out in mandatory terms what the Respondent needs to be satisfied of as far as the genuineness test is concerned – not the other way around.

50. In addition, the Applicants raise other matters under this ground at paras 26-27, which are effectively a different way of arguing the failure of the Respondent to take relevant matters and evidence into consideration when assessing the credibility of the job creation that I have already considered and addressed through the Applicants’ first ground.

51. For these reasons, this ground also succeeds.

The Applicants’ third ground of challenge – procedural unfairness

52. The Applicants argued within this ground that the Respondent’s refusal effectively amounts to an allegation that the 10 employed positions claimed by the Applicants and their business were not genuine, i.e. were fabricated. Since this concerns bad faith then this is an allegation that ought to have been put to the Applicants through a minded-to procedure, in line with the now well-established authority of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 [2019] 1 WLR 4647. The Applicants argue that the Respondent’s suspicion was not clearly indicated in the pre-decision correspondence. It is said that the Applicants had no real opportunity to respond to the allegation of bad faith and this renders the Respondent’s decisions procedurally unfair.

53. The Applicants also noted that there is nothing in the judgment of Taj v Secretary of State for the Home Department [2021] EWCA Civ 19 [2021] 1 WLR 1850 that undermines their arguments on procedural unfairness. As noted by Judge Blundell, when granting permission to appeal, the applicant in Taj was interviewed and during that interview, the relevant matters were explained to him and he had the opportunity to address these. In this case, the Applicants are right to point out that no interviews have been conducted pre-decision and there was no other opportunity given to the Applicants to address any allegation of bad faith and deception.

54. Mr Howarth argued in response that the Respondent had given ample opportunity for the Applicants to demonstrate the credibility of the job creations as targeted requests had been made for further information, with sufficient time provided to the Applicants to respond, which they duly engaged with, albeit unsuccessfully.

55. Whilst Mr Howarth’s submission is a forceful one, it is trite to note that the principle of procedural fairness is context-specific. As I have already considered above, the Respondent’s request was for evidence of work undertaken by each employee and for copies of e-mails between the Applicants/their business and each of their employees. An explanation was provided by the Applicants for the second set of documents requested and evidence of work undertaken was provided as addressed above.

56. Mr Howarth submitted that the Respondent’s concern was put squarely and earlier – I disagree. The Respondent did not set out in their request that she was concerned that the Applicants and their business had not genuinely created the 10 full time positions claimed. It is one thing to request for evidence of work undertaken and for e-mails, with an expectation that employees communicate with their employers and perform their work in a certain way, and another to allege that the 10 positions are effectively a sham because that expectation is not met.

57. The Respondent’s argument at para 31 of her skeleton argument that the decision is ultimately not making an assessment on honesty is also hard to follow when the Respondent alleges that the job creation is not genuine. The meaning of ‘genuine’ is: truly what something is said to be; authentic. The opposite of genuine can reasonably be understood therefore to be something that is false or a pretence.

58. For the reasons above, I am also satisfied that the Applicants’ third ground of challenge succeeds in the alternative to the Applicants’ first two grounds.

59. In light of the above, I would quash the Respondent’s decisions of 14th April 2024 and 13th January 2025 and remit the matter to the Respondent for reconsideration.

60. The parties are directed to use their best endeavours to agree an order to reflect the terms of this judgment. The order should also address any consequential matters, including any application for permission to appeal and costs.

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