Tribunal decisions

The decision

Case No: JR-2025-LON-004248
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

10th November 2026

Before:

UPPER TRIBUNAL JUDGE RIMINGTON

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Between:

THE KING
on the application of
BERKAY AKSU
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Ms R Chapman
(instructed by Ashton Ross Law), for the applicant

Ms N Jackson
(instructed by the Government Legal Department) for the respondent

Hearing date: 3rd August 2026

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J U D G M E N T

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Judge Rimington:
1. The applicant is a national of Turkey born on 28th February 1995, trained as an opera singer and graduated from Baskent University’s Conservatory in Opera Singing. He made an application on 17th December 2020 for entry clearance under the Turkey – European Community Association Agreement (ECAA) in order to set up a business ‘Tenor Vocal Coaching” a musical tutoring service offering a bespoke teaching.
2. The application was refused on 30th March 2021 with reference to the viability of the applicant’s business plan and that decision was upheld on administrative review (AR) on 24th September 2023. Following a pre-action protocol letter dated 15th November 2023 the Secretary of State agreed to reconsider the decision under challenge and there was a reconsideration. On 27th November 2023 the application was again refused (the Decision). A further AR decision (the AR decision) dated 22nd December 2023 upheld the Decision. Following the pre-action protocol the applicant issued judicial review proceedings on 1st December 2025.
3. Inter alia the Decision included the following reasoning:
‘There is insufficient evidence to demonstrate that your business proposal meets the requirements set out in the relevant guidance.

…No evidence has been provided to demonstrate the applicant has any business experience in the music or teaching sectors, nor have they undertaken any relevant training to gain the skills required to set up their own business.

…It is unclear what specific personalised research the applicant has conducted to assess the demand for the services of his business in his target location. The business plan shows limited research, it is therefore difficult to ascertain how the business will perform in comparison to these already well established businesses in same field.

…The Secretary of State notes the applicant has provided supporting letters from potential clients, however the information provided does not demonstrate the applicant’s level of English, and whether it is necessary for the success of his business. This leads the Secretary of State to doubt the applicant’s ability to successfully execute his proposed business activities.

…A SWOT analysis has been provided that identifies a limited number of threats and weaknesses and does not offer a detailed reflective analysis on the proposed business endeavour. This level of analysis is not indicative of a genuine intention to establish in business as stated.

…A projected turnover of £29,600 of total sales at the end of the first year has also been stated in the business plan, however it is unclear how this has been arrived at. It is not clear from the business plan or the other documents submitted how this level of turnover has been calculated and in the absence of such information it has not been demonstrated that the projected turnover is realistic or achievable.

…The documents submitted do not demonstrate any experience in business management, marketing or sales. This leads the Secretary of State to doubt whether the applicant can run a successful business in the UK. It is unclear why a customer in the UK would choose this business’ services, with no experience of the UK market, instead of a more established alternative already operating in the UK…
4. Permission to appeal was granted on 19th February 2026 in the following terms
‘The Applicant relies on four grounds:

Ground 1: The respondent unlawfully refused the application by reference to factors which did not form part of the applicable Immigration Rules in paragraph 21 of HC510 and unlawfully applied the guidance as decision criteria;

Ground 2: The reasons for refusal were irrational and/or failed to consider the Applicant’s evidence;

Ground 3: The respondent failed to conduct an interview with the Applicant as required by the ECAA guidance;

Ground 4: Further or alternatively the respondent acted unfairly by failing to give notice of, and an opportunity to address, the allegation that the business was not genuine

The grounds are arguable. Permission is granted on all grounds.’
The legal framework
5. 9.1. Paragraph 32 of HC 509 provides:
‘If the applicant wishes to establish in business in the UK on his own account, he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.’
6. The ECAA business guidance v10, 30 March 2020 (ECAA business guidance) provides, where relevant, at page 176 of the authorities bundle:
“Evidence to assess the applicant has met the requirements of the Turkish ECAA

This page tells you about what documents an applicant should submit with an application to prove they meet the requirements of the Turkish ECAA. While the 1973 rules do not specify the types of documents to be submitted in support of a business application, you must assess if failure to provide relevant and/or requested documents undermines the credibility of the applicant’s business proposal.

The documentary evidence caseworkers may expect to see include:

• application form ECAA2 (which is a specified form)
• business plan
• business accounts for the previous 2 years (if appropriate)
• funding evidence
• bank statements, overseas money transfers, bank loans
• certificate of registration with Companies House (if appropriate)
•tax and/or national insurance (NI) registration and tax documents
• partnership agreement
• copies of contracts and invoices
• educational and vocational qualifications
• testimonials
• proof of advertising
• premises agreements
• licence required or obtained
• staff details
• insurance details
• evidence of personal living costs

Requests for further information

You must decide on a case by case basis whether it is appropriate to request further information from the applicant. Where a refusal is based partly or wholly on the applicant failing to provide necessary documentation, you must make it clear in the decision letter why and how any missing documents led to a refusal.”
And at page 177:
“Interviewing applicants

If you are unable to determine whether an application is genuine solely from the documents provided you must consider if it is necessary to interview the applicant in person. For example, you may have concerns about:
• the authenticity of the documents provided
• inconsistencies in the evidence provided
• significant omissions in the documents required
• the involvement of a third party in preparing the application
• applications which appear to be identical with other applications previously submitted
• the credibility of the application…”
And at pages 180-181:
“Evidence of experience and qualifications

This page tells you about how a person’s experience and qualifications can be used in part to assess their ability to establish in business or continue operating their business when applying as a businessperson under the Turkish ECAA. Experience and qualifications are not requirements of the 1973 business rules but should be taken into account as part of the overall assessment of the evidence provided. You must examine this evidence in the context of the proposed business, taking into account the other supporting evidence provided. In some circumstances, common sense will tell you it may be possible for the applicant to establish in business without relevant experience or qualifications. In other circumstances, a lack of previous experience and/or qualifications may be a barrier to establishing a business. For example, it could extend the time taken to establish the business and slow the rate of growth of the business in subsequent years. All businesspersons are expected to show they have at least a basic understanding of business and financial management including cash-flow management.

Insufficient evidence

In cases where the applicant does not provide sufficient evidence of their previous experience and/or qualifications relevant to the application, you should ask them to provide further written evidence. This may take the form of employer references and certificates…”
And at page 182:
“Evidence of proficiency in English

This page tells you about how a person applying as a businessperson under the Turkish ECAA, proficiency in English can be used to assess their ability to establish in business or continue operating their business.

Fluency in English is not a requirement of the 1973 business provisions but should be taken into account as part of the overall assessment of the evidence provided. If the applicant has little or no English you must consider this in the context of the proposed business, taking into account the other supporting evidence provided. In some circumstances, common sense will tell you that it may be possible for the applicant to establish in business with little or no English. In other circumstances, not being able to speak good English may present severe difficulties. For example, it could extend the time taken to establish the business and slow the rate of growth of the business in subsequent years. In cases where the applicant does not provide sufficient evidence of proficiency in English and this is relevant to the application, you must ask the applicant to provide further written evidence of their fluency. This may take the form of an appropriate qualification in English or a certificate of attendance from a college where they are studying English. You must check that the evidence is correct and genuine. Applications where you consider fluency in English to be important for the proposed business but the applicant does not provide sufficient evidence of this may suggest the business is not credible. This should be taken into consideration in the overall assessment of the application and where appropriate, you may consider refusing the application under paragraph 21 of the 1973 rules (HC510)…”.
7. In the Presidential decision in Akinci (paragraph 21 HC 510 – correct approach) [2012] UKUT 00266(IAC) the Upper Tribunal held at [17]:
“17. The Secretary of State’s understanding of the requirements of paragraph 21 is set out in her extensive instructions to her staff in section 6 of the Immigration Directorate Instructions. These do not have the force of law, but nevertheless they have a legitimate impact in that it would be wrong for a judge to reach a decision in ignorance of them (see ZH (Bangladesh) v SSHD [2009] EWCA Civ 8; [2009] Imm AR 450)”.
And at [19]:
“19. Whilst the suggested evidence to be provided in support of an application is useful as a means to satisfying the Secretary of State of the application, the expectation that the applicant “is able convincingly to demonstrate an understanding of any written evidence” sets the standard too high and does not represent the approach applied in 1972 which is the acid test. An applicant may have a clear idea of what he plans to do but may not have sufficient sophistication to explain the way in which his ideas have been expressed by a business adviser. He does not have to be a financial expert and in a case of doubt, clarification can be provided if needed and the adviser could be called to give evidence if matters are in doubt.”
Submissions
8. I admitted the skeleton argument from Ms Chapman and Ms Jackson confirmed that she did not object to proceeding notwithstanding the Secretary of State had not filed a skeleton argument. Ms Jackson confirmed that she was content to rely on the Secretary of State’s detailed grounds of defence.
9. Both representatives agreed on the legal framework as set out by Ms Chapman in her skeleton argument. I enquired about the transitional arrangements, and an agreed copy of the relevant regulations was forwarded to me after the hearing. The key provision for determining the application was HC 509 and the ECAA business guidance applicable was version 10. The application route for entry clearance is now closed.
10. Ms Chapman submitted that the Decision effectively applied requirements which went well beyond the requirements of HC 509 and those the applicant was expected to meet. Akinci at [19] referenced the ‘acid test’ (albeit that was in relation to leave to remain (HC 510)). Factors were referred to in the Decision which were no part of HC 509.
11. As to ground 1, it was acknowledged that the correct test was cited in the Decision.
12. As to ground 2, there was no requirement in the rules for specific evidence. The rule simply required that that there are funds and the applicant can support themselves without recourse to other forms of employment. This was met by the provision of the detailed business plan. The applicant had a degree from a leading university in Ankara. The Decision referred to the Turkish Culture and Tourism Ministry letter but not to other relevant evidence as the applicant’s skills and experience. I was referred to the evidence which the respondent had overlooked. The Directorate of the General State Opera confirmed the applicant was working on skills to become an educator and Umut Yasa referenced the previous educational and teaching aspects of his career. These aspects of the evidence were important and not addressed.
13. The SGK records, Turkish social security and pension records, did not only reference work as an estate agent but also revealed the applicant had worked for the Ankara State Opera.
14. The business plan identified that the applicant’s pricing was very competitive and this plan referenced and analysed a number of other tutoring organisations which were competitors. There was nothing in the ECAA business guidance as to the level of research required and it could be seen he had undertaken significant research. The ECAA business guidance confirmed there is no formal requirement for a business plan and where information was missing it was necessary to make it clear why and how any missing documents led to a refusal.
15. I was also referred to the section of the ECAA business guidance on interviewing applicants.
16. As to the level of English, the applicant’s Curriculum Vitae (CV) noted that he had attended school in Tennessee at the age of 13 and the business plan also confirms he will conduct coaching in English and Turkish. Thus, there was evidence as to the applicant’s English proficiency. The Baskent University transcripts which identified that the applicant had undertaken English at university/degree level were not before the decision maker, but fluency was not a requirement. If English was relevant to the application, the respondent should have asked the applicant to provide further written evidence. I was referred to the principles in Karagul v Secretary of State [2019] EWHC 3208 (Admin) at [106].
17. In sum, the ECO further to the ECAA business guidance should have given the applicant the opportunity to answer questions and explain. The applicant had provided the university degree certificate.
18. Additionally, the Secretary of State was stating with regard to the SWOT analysis that the applicant had a lack of genuine intention to commence a business. That was irrational.
19. There were flaws in the record of the turnover and it is not rational to accept that this flaw in the analysis was not material. The same mistake was made in the previous decision. This also showed a lack of scrutiny which was fundamental to the legality of the Decision.
20. The AR which addresses case working errors simply echoed the reasoning of the underlying Decision and further repeated, for example that the applicant had not ‘demonstrate[d] that [the applicant] has had any business experience in the music or teaching sectors’ and simply as to turnover that the AR agreed with the conclusion of the underlying Decision.
21. Ground 3 showed the respondent failed to comply with her own guidance. As the ECAA business guidance (at 177) states there are certain circumstances where an interview should be conducted and this was the same guidance which was in existence for some time and in similar terms to that before the court in Karagul.
22. Ground 4, procedural fairness was not afforded to the applicant. I was referred to [55]-[61] of Balajigari v The Secretary of State for the Home Department [2019] EWCA Civ 673.
23. It could not be said that the errors had no material effect.
24. Ms Jackson invited me to consider the totality of the guidance in Karagul and to read the Decision under challenge in the round. The reference to ‘genuine intention’ was not referring to any form of bad faith. There was, she accepted no clear definition of what took the matter into bad faith territory.
25. She understood the applicant not to be strictly pursuing the first ground as HC 509 had in effect been applied.
26. The second ground was the nub of the application and essentially a rationality challenge. The finding on the business plan is not about the applicant’s musical ability, but whether the business would be able to support him. The ECO was obliged to turn her mind to whether the business could realistically support the applicant. The Decision was not saying that the music business experience was required. The question was whether the proposed business could support the applicant. The applicant had no business experience to demonstrate that.
27. Karagul emphasises that the challenge to the discretion of the decision maker had a high bar. The Decision was not calling into question whether he had taught music. The question was whether he was realistically establishing a business in the UK. The ECO had looked at the business plan and was not saying he had been an estate agent all his career. The applicant’s evidence did not move the dial on business experience. Given the business plan was submitted it was bound to be considered in the event of the considerations. Only a limited number of threats were identified in the SWOT analysis and there was limited research. The conclusions were rational having looked at all the information. The ECO was not stating that the applicant was making up his intention to start a business. The reference in the Decision was not a finding on bad faith.
28. The English language assessment was part of the overall assessment of the viability of the business. There was insufficient evidence of his English ability such that the applicant could execute his business plan.
29. The mistake on the turnover, which was accepted, was not fatal to the Decision. What was looked at was whether the business could support an individual. There was no process rationality error.
30. In ground 3, there was no obligation to interview the applicant. The respondent found no ‘bad faith’ element and thus there was no requirement to interview. I was invited to look at the guidance carefully.
31. In ground 4, Karagul was relevant. As stated, there was no bad faith element and fairness is context specific. There had been a previous decision, and it was open to the applicant to provide further information. He did not. Now he was stating that if he had known he could, he would have sent in more information.
32. Ms Chapman responded that this case was all about genuine intention and that underpinned the respondent’s entire consideration. Ms Chapman referred me to [106(x)] of Karagul. Fairness should be seen in the context that this route was now closed to the applicant. There had been no invitation to provide further information and there should have been.
Discussion and conclusions
33. The issues in this matter involve
(i) whether the respondent unlawfully refused the application under the ECCA by reference to factors which did not form part of the applicable Immigration Rules

(ii) whether the reasons for refusal were irrational and/or failed to consider the applicant’s evidence and unlawfully applied the guidance

(iii) whether the respondent failed to conduct an interview in line with the ECAA business guidance

(iv) the respondent acted unfairly in failing to give notice of an opportunity to address the allegation that the business was not genuine.
34. As to ground 1 of the grounds, it appears to me that the Decision incorporates a ‘boiler plate’ approach as to the relevant requirements but does in essence refer to and rely on the substance of the relevant rule, HC 509. This ground must fail.
35. As to ground 2, reading the Decision as a whole there would appear to be a number of defects which cumulatively undermine the legality or rationality of the Decision. I appreciate there is a ‘high bar’ as to the discretion of the assessment by the ECO, and that an assessment inter alia of the viability of the business is made. The immigration rules must be applied sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy, Mahad v Entry Clearance Officer [2009] UKSC 16. The relevant evidence, however, must be considered and must be considered accurately.
36. The applicant had applied for entry clearance to establish a business based in London under the trading name of ‘Tenor Vocal Coaching Ltd’. It was to provided tailor-made student coaching and education consultancy through private/online vocal coaching and opera acting.
37. The Decision stated that in relation to the applicant’s experience ‘he has provided his SGK document which shows he has been employed as a ‘Real Estate Agent’ from 04/09/20 – present’. The SGK documents do record that the applicant was employed as an estate agent but the Decision, however, makes no reference to the applicant being employed by Ankara State Opera and this is referenced in the SGK and thus recorded in the official Turkish document.
38. The Decision considered the letters of reference provided but stated ‘no evidence has been provided to demonstrate the applicant has any business experience in the music or teaching sectors, nor have they undertaken any relevant training to gain the skills required to set up their own business.’
39. First, this is not a requirement of HC 509 but even if this goes to the overall assessment of the viability of the business, this observation omitted to identify the references which confirmed the applicant’s experience in music teaching (and it would be most surprising if he were not paid). For example, the letter dated 25th January 2021 from the Gokhan Yasar at the Directorate General of the Turkish State Opera and Ballet stated that ‘Berkay Aksu is a skilled professional singer with whom I had the great pleasure to work with at Ankara State Opera and Ballet between 2018 and 2020.’
Secondly, the applicant clearly has business experience working in an estate agent and there was no suggestion that general business experience was irrelevant. The reference in the Decision was not simply that the applicant had not run a business but also included the reasoning that ‘The documents submitted do not demonstrate any experience in business management, marketing or sales.’
40. Additionally, the Business guidance states at page 180-181
Insufficient evidence

In cases where the applicant does not provide sufficient evidence of their previous experience and/or qualifications relevant to the application, you should ask them to provide further written evidence
41. That a business plan was put forward to support the application was acknowledged. There is no indication in the immigration rule as to the detail, format or the length of the business plan required, or indeed the research required. The Decision stated, ‘there was limited references (sic) to what services many of these competitors provide’; that assessment was despite the descriptive names of the companies. It was stated that the plan showed limited research and it was difficult to ascertain how the business [of the applicant] would perform in comparison to well established businesses in the same field but as Ms Chapman pointed out the pricing was a unique feature of the applicant. The market research in the business plan covered a number of pages and identified a boom in private tuition, the general background and addressed the target market. The detail in the plan, which referenced the music training and education studies the applicant had offered previously, indicates that it was not read in properly by the ECO.
42. The route under HC 509 was specifically to ‘establish’ a business and it will always be difficult to know how a business would perform in the future. The applicant is not expected to be a financial expert. It is not a requisite that the business must be assured of success although it is appreciated the viability is being assessed.
43. As set out in Akinci, albeit with reference to leave to remain applications but which principles have bearing on entry clearance applications:
“A plan is what it says it is: a projection of how it is anticipated things will work out with the possibility of making adjustments as the business gets under way. It is not a strait jacket”.
And further at [21]
“Even where a business is not expected to be profitable in the short term, revenue generated may well be enough to meet short term liabilities and provide enough for the applicant’s support” and that “…The test is not whether the applicant is going to get a return on his investment but whether what is projected is likely to enable the applicant to pay the bills arising and meet his living expenses”.
44. The supporting letters from potential clients were essentially considered assistance to the application but criticised as it was not clear how the applicant ‘came into contact with these people’ although once again this was not specifically a requirement of HC 509 albeit tangentially part of the overall assessment.
45. The Decision also recorded ‘nor does the information provided demonstrate the applicant’ s level of English and whether it is necessary for the success of his business. This leads the Secretary of State to doubt the applicant’s ability to successfully execute his proposed business activities.’
46. However, the ECO appeared to ignore the references in the evidence to the applicant’s ability in English language (his attendance at a school in Tennessee in the USA), and failed to take into account the representations made prior to the second reconsideration that universities in Turkey generally have a module in English. The representations specifically stated: ‘Our client intends to provide services in both English and Turkish to accommodate the linguistic needs of their potential clients.’ That was not seemingly addressed. As pointed out, there are no legal requirements for advanced English proficiency under the ECAA business provisions.
47. Moreover, (also pertinent to ground 3) the ECAA business guidance states under Evidence of proficiency in English:
‘In cases where the applicant does not provide sufficient evidence of proficiency in English and this is relevant to the application, you must ask the applicant to provide further written evidence of their fluency. This may take the form of an appropriate qualification in English or a certificate of attendance from a college where they are studying English.’
48. That did not occur.
49. The Decision recorded that the SWOT analysis provided only a ‘limited’ number of threats and weaknesses and was criticised for failing to ‘offer a detailed reflective analysis on the proposed business endeavour.’ This is set out in wholly vague terms and unclear what is expected. Indeed, there is no specific requirement for either a business plan nor indeed strictures as to the required detail of the SWOT analysis and both were provided. Akinci confirmed that the applicant is not expected to be a financial expert. Moreover, this reasoning was used to undermine the genuine intention of the applicant as to the business and see below.
50. Unfortunately, the Decision then proceeded to misquote the turnover which again showed the Business plan had not been properly considered. The Decision recorded a projected turnover of £29,600 and not £35,680 as detailed in the application. This was said in the Decision to be on the basis that it was unclear how the turnover had been arrived at from the business plan or from the documents submitted. As can be seen, the assessment of the background documentation itself was flawed. The AR addressed this point, stating this error had no material effect on the outcome of the application. That cannot be correct. This was a fundamental error bearing in mind the key requirement of HC 509 is to:
‘bring[ing] into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.’
51. It is obviously key to the application that the correct figures are addressed, and the assessment was adrift by over 20%. To criticise the figures without citing the correct figures displays a critical misunderstanding of the application and a failure to factor in properly the one key requirement set out in HC 509 – the income to support the applicant.
52. Ground (iii) Even though the guidance states that a business plan is not a requirement, the ECO proceeded to find on the basis of the level of the SWOT analysis that thus the business plan was not indicative ‘of a genuine intention to establish in business as stated’.
53. Karagul at [106 (x) – (xi) said this
“(x) That is because the terms "genuine intention or wish" are in context referring to a potential conclusion that the application is made in bad faith. That is, in circumstances where the applicant has no true intention to start and run the claimed business but is using the application as false basis to obtain LTR. Not only is that the general English language meaning in this context of "genuine intention or wish" but it also appears to be the understanding of the draftsman of the Guidance who specifically identified the following indicators of a lack of genuineness (when an interview might be required):

"If you are unable to determine whether an application is genuine solely from the documents provided you must consider if it is necessary to interview the applicant in person.
For example, you may have concerns about:
◦ the authenticity of the documents provided
◦ inconsistencies in the evidence provided
◦ significant omissions in the documents required
◦ the involvement of a third party in preparing the application
◦ applications which appear to be identical with other applications previously submitted
◦ the credibility of the application is in doubt."

(xi) Although there is no obligation to undertake an interview under the Guidance in such circumstances, it would be rare that it would be fair and lawful at common law not to interview an applicant if his or her application was to be rejected on the basis that the applicant had not shown a "genuine intention or wish" to run the proposed business. That is an application of the general principle I have identified at para. [103] above.”
54. I do not accept Ms Jackson’s submission that the ECO’s term ‘not indicative of a genuine intention to establish in business as stated’ was not an aspersion on the intention to establish a business by this applicant. It simply says what it means. It is not a criticism of the ‘credibility’ of the business, which might give latitude to the concept of viability, but clearly raised the flag of lack of genuine intention to establish in business as stated on the part of the applicant. It is difficult to impose any other interpretation of the terms used in the Decision other than it means what it says.
55. I refer to my underling above of Karagul [106(xi)]. Thus, the ECO did raise a question as to bad faith but did not seek to interview the applicant as per the guidance. Even if the guidance gives scope not to interview, the steer is plain from Mr Justice Saini in Karagul. The ECO did not explain why there was no interview and bearing in mind the overall approach of the Decision that was a public law error and, in my view, showed the respondent failed to comply with her own guidance
56. Ground (iv) in the light of my findings above I conclude that there is also a procedural error. Further to R v Home Secretary ex p. Doody [1994] 1 AC 531 [570] I appreciate that the duty of procedural fairness is context specific but, in this instance, I conclude that this duty has been breached.
57. I appreciate that the overall assessment is whether the business can support the applicant and its viability, but the focus in the Decision appeared grounded in disbelief. The Decision concluded the applicant had not provided sufficient information, but the evidence considered was either through a lens not focused through the rule and guidance itself on the basis of accurate assessment of underlying features.
58. The Decision and AR Decision (which focuses on case working errors) are flawed on public law grounds as identified above.

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