England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER
UPPER TRIBUNAL JUDGE JACOBS
JR/3515/2016

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11/2018

Lady Justice Nicola Davies DBE:

1. This is an appeal by Muhammad Safeer (the appellant) and his dependants, his wife and daughter, against a decision of Upper Tribunal Judge ("UTJ") Jacobs dated 27 June 2016 whereby he refused permission to apply for judicial review to challenge the refusal by letter dated 3 December 2015 of the appellant's Tier 1 entrepreneur application and the subsequent administrative review decision dated 11 January 2016. The judge also certified the claim as totally without merit. Permission to appeal was granted by Sir Kenneth Parker sitting as a Judge of the Court of Appeal on 12 April 2017.
2. The appellant and his dependants are Pakistani nationals. On 16 September 2007 the appellant arrived in the UK pursuant to entry clearance on a student visa. On 11 December 2009 he applied for leave to remain ("LTR") as a Tier 4 general student. The application and subsequent appeals were refused, he became appeals rights exhausted on 30 September 2010. On 2 December 2010 he applied for LTR as a Tier 4 general student which was granted and extended until 15 August 2014. On 10 February 2014 his wife was granted entry clearance, she arrived in the UK on 12 March 2014 with their daughter. The entry clearance expired on 15 August 2014. On 6 August 2014 the appellant applied for LTR as a Tier 1 HS entrepreneur, his wife and child were listed as dependants. The application was rejected on 15 August 2014. On 16 August 2014 he and his dependants applied for LTR as a Tier 1 HS entrepreneur. The application and subsequent appeals were refused, he became appeals rights exhausted on 12 October 2015. On 6 November 2015 the appellant and his dependants applied for LTR as a Tier 1 HS entrepreneur. On 3 December 2015 LTR was refused with the right to an administrative review. On 11 January 2016 the administrative review decision was given and the refusal was maintained. On 31 March 2016 the appellant, and his dependants, issued proceedings for judicial review. On 27 June 2016 UTJ Jacob refused permission and certified the claim as totally without merit ("TWM"). On 22 July 2016 UTJ Jordan refused permission to appeal which was subsequently granted by Sir Kenneth Parker.

The Immigration Rules

3. The rules relevant to the appellant's application have since been amended. Identified below are the rules current at the time of the application. The requirements for LTR as a Tier 1 entrepreneur migrant were set out in paragraph 245DD of the Immigration Rules. An applicant for Tier 1 entrepreneur LTR was required to have a minimum of 75 points for Attributes under paragraphs 35 to 53 of Appendix A (paragraph 245DD(b)). The appellant's last LTR was as a Tier 1 post-study migrant, thus he was only eligible to be awarded points under the provisions of Table 4(b)(ii), (b)(iii) or (d) (paragraph 36B of Appendix A). In making his application the appellant relied on Appendix A, Table 4(d) which states:

"(d) The applicant:

(i) is applying for leave to remain,

(ii) has, or was lasted granted, leave as a Tier 1 (Post-Study Work) Migrant, and

(iii) has access to not less than £50,000.

…

An applicant who is applying for leave to remain and has, or was last granted leave as a Tier 1 (Post-Study Work) Migrant will be awarded no points under (d) above, unless he meets the additional requirements in (1) and (2) below.

(1) Since before the specified date below and up to the date of his application, the applicant must have been continuously engaged in business activity which was not, or did not amount to, activity pursuant to a contract of service with a business other than his own and, during such period, has been continuously:

Registered with HM Revenue & Customs as self-employed, or

Registered with Companies House as a director of a new or an existing business. Directors who are on the list of disqualified directors provided by Companies House will not be awarded points.

(2) Since before the specified date below and up to the date of his application, has continuously been working in an occupation which appears on the list of occupations skilled to National Qualifications Framework level 4 or above, as stated in the Codes of Practice in Appendix J, and provides the specified evidence in paragraph 41-SD. 'Working' in this context means that the core service his business provides to its customers or clients involves the business delivering a service in an occupation at this level. It excludes any work involved in administration, marketing or website functions for the business, and.

The specified date in (1) and (2) above is:

11 July 2014 if the applicant has, or was lasted granted, leave as a Tier 1 (Post-Study Work) Migrant…"

The appellant had to meet the additional requirements in (1) and (2) above and provide the specified evidence identified in paragraph 41-SD which states:

"41-SD. The specified documents in Table 4 and paragraph 41, and associated definitions, are as follows:

…

(e) If the applicant is applying for leave to remain, and has, or was lasted granted, leave as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant, he must also provide the following evidence that he meets the additional requirements set out in Table 4:

(i) his job title,

(ii) the Standard Occupational Classification (SOC) code of the occupation that the applicant has been working in since before 11 July 2014 or 6 April 2015 (as applicable), up to the date of his application, which must appear on the list of occupations skilled to National Qualifications Framework level 4 or above, as stated in the Codes of Practice in Appendix J,

(iii) one or more of the following specified documents covering (either together or individually) a continuous period commencing before 11 July 2014 or 6 April 2015 (as applicable), up to no earlier than three months before the date of his application:

(1) advertising or marketing material, including printouts of online advertising, that has been published locally or nationally:

(a) showing the applicant's name (and the name of the business if applicable) together with the business activity;

…

(v) …

(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;

…

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 no earlier than three months before the date of his application."

4. In order to satisfy the requirements of Table 4 the appellant submitted various Companies House documents. There is a factual issue as to whether one of the documents which he submitted was a Companies House Current Appointment Report ("CAR") as required by paragraph 41-SD(e)(v)(2). Further, pursuant to the provisions of 41-SD(e)(iii)(1) the appellant supplied material which consisted of dated advertising or marketing material from the business' own website and dated marketing material consisting of a business flyer, a business card showing the appellant's job title as business support manager and a letterhead. The date of the advertising/marketing material from the website was June 2014. It is the appellant's case that the business does not trade online and thus the fact that he is not domain owner of the website is irrelevant for the purpose of this application.
5. In the original refusal of the appellants' application the respondent relied on the fact that the appellant had not provided a Companies House CAR. Further it stated:

"…the evidence that you have submitted in relation to advertising material is not acceptable as it does not cover a continuous period commencing before 11 July 2014, up to no earlier than three months before the date of your application. Please see below for further details;

The business card, flyer and letter headed paper are not an acceptable for (sic) of evidence for advertising as the Immigration Rules state the evidence must have been published nationally or locally, we cannot see from this evidence that this has been done.

Furthermore, you have provided evidence of a business website however the domain registration evidence you have provided and the evidence we have on our systems does not sure (sic) you are the domain name owner and therefore this evidence is not acceptable.

You have provided no other evidence as specified under 41-SD(e) of the immigration rules to show trading which covers a continuous period commencing before 11 July 2014, up to no earlier than three months before the date of your application."

6. In the administrative review decision the following was stated:

"In your Administrative Review application you have stated that your evidence submitted in relation to your application for the purposes advertisement contained the information required i.e., your name, your business name and the business activity providing that the business was trading before 11 July 2014 till the date of your application.

As your application consisted of business card, flyer and a letter headed paper this form of evidence is not acceptable for advertising purposes because it does not show that it has been distributed nationally or locally. In regards to this issue in your Administrative Review application you have stated that you are a 'Business Support Manager' and this rule is not applicable to you however, paragraph 41-SD(e) applies to migrants whose previous grant of leave was Tier 1 (Post-Study Work) Migrant which was your previous valid leave.

Checks we have conducted against the domain name and your company imagecon.co.uk and we can confirm that your name is not registered as the domain name owner against this company. Therefore, your Tier 1 HS – Entrepreneur – LTR application does not satisfy the requirements of paragraph 41-SD(e)(iii)(2) hence and you need to provide the advertising material required under 41-SD(e)(iii)(a)(b).

Furthermore, we have also carefully checked all of your documents on your file and we can confirm that your application for Tier 1 HS – Entrepreneur – LTR valid from 10^th November 2015 did not contain Companies House, Current Appointments Report as required under Table 4: Applications for entry clearance or leave to remain referred to in paragraph 36(1). You have submitted this document with your Administrative Review application however, this evidence will constitute a fresh form of evidence therefore rejected."

7. In the original refusal of permission UTJ Jacobs stated:

"4. As far as the report from Companies House is concerned, I am prepared to accept for the purposes of argument that you did submit the necessary document to the Secretary of State and it was misplaced. On that basis, it does not help your case as the report is but one of a number of documents all of which must be presented in support of your application. As the documents submitted were deficient in other respects, your application was still properly refused. The same is true if the Secretary of State should have invited you to remedy the omission of this report from the documents you submitted.

5. As far as the domain ownership is concerned, on your argument this was irrelevant. As it was but one of a number of cumulative reasons given by the Secretary of State, it was not material in the sense that your application was flawed in other respects.

6. As far as the other advertising material is concerned, this failed to meet the evidential requirement by not showing the dates or its distribution. The same is true, for that matter, of the evidence of the website – it did not show the relevant period.

C. Why your application is totally without merit

7. The test I have to apply is whether a hearing would serve the purpose of giving 'an opportunity … to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers': Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 at [17(3)].

8. For the reasons I have given, your application for leave was flawed and could not be accepted by the Secretary of State. The deficiencies in the documentation, even assuming the Companies House report was submitted, could not be remedied for the reasons explained by the Secretary of State."

8. Given the certification of TWM pursuant to CPR 54.12(7), the appellant was not able to request reconsideration of the decision at a hearing. He sought permission to appeal from the Upper Tribunal to the Court of Appeal. On 22 July 2016 UTJ Jordan in refusing permission to appeal stated:

"2. In refusing permission, Upper Tribunal Judge Jacobs appears to have relied solely on the lack of dates on the website material for refusing permission. It is arguable that the material, on a proper examination, did indeed contain dates. However, the grounds of appeal to the Court of Appeal do not address the Secretary of State's other reasons which include that the submission of print-outs did not demonstrate business activity as claimed and that the applicant did not trade online via imagecon.co.uk. The other point not addressed is set out in paragraph 19 of the acknowledgement of service.

3. Absent an arguable case that the Secretary of State is wrong on these other matters, I refuse permission. I would not regard the fact that the Upper Tribunal Judge confined his refusal to limited matters as precluding me from considering wider matters raised by way of a challenge to the applicant's grounds seeking judicial review."

The hearing of the appeal

9. At the hearing it was agreed between the parties that the court would hear and determine the substantive application, a course with which the court agreed. Two issues require determination:

i) Whether or not the CAR was provided with the appellant's application of 6 November 2015;

ii) Whether Table 4 Appendix A, 41-SD(e)(iii)(1) was satisfied?

10. As to the interpretation of the Immigration Rules the following authorities are relevant: Mahad (previously referred to as AM) (Ethiopia) v Entry Clearance Officer [2009] UKSC 16 where at [10] Lord Brown stated:

"…The Rules are not to be construed with all the strictness applicable to the construction of a statue or a statutory instrument but, instead, 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."

In Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 the following assessment was provided:

"32. The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them. ... To adopt the language of Lord Brown in Mahad, 'the natural and ordinary meaning of the words, recognising that they are statements of the Secretary of State's administrative policy,' ..."

Provision of a CAR

11. The appellant's case is that the CAR was one of a number of documents which he filed with a covering letter in respect of his application. At paragraph 6 of the letter he states:

"I am the only director of 'IMAGE CONSULTANCY LTD' since date of corporation. Please see attached following evidence of directorship;

'Current Appointment Report' from Companies House…"

12. In completing section 3 of the relevant application form the appellant crossed the box indicating that he had filed a print out of a CAR. The CAR was created on 28 October 2015, one week before the appellant made his application, by inference in preparation for it. In the judicial review proceedings the first ground of challenge was the finding by the respondent in the decision dated 3 December 2015 that the appellant had not provided the CAR. The appellant's solicitor signed a Statement of Truth in the judicial review application which included the words "I believe (the applicant believes) that the facts stated in this claim form are true". In the appellant's witness statement dated 8 April 2016 he states that he had seen the grounds for judicial review and they are accurate.
13. The respondent has provided the GCID Case Record Sheet in respect of the appellant's application. It identifies documents provided by the appellant and states:

"No current appointment report, business cards, leaflets and letterheaded paper are not an acceptable for (sic) of advertising material and applicant is not the domain name owner of the website. … Refusal on No Current appointment report."

The input date for the identification of documents is 13 November 2015. Further, in the "minutes" in the same record sheet it states that "FAO [redaction] … placed in team's pigeon hole." The appellant relies on this entry as indicating that the documents which were submitted by the appellant were moved within the offices of the respondent.

14. In the administrative review decision dated 11 January 2016 it is stated by those acting on behalf of the respondent:

"Furthermore, we have also carefully checked all of your documents on your file and we can confirm that your application for Tier 1 HS – Entrepreneur – LTR valid from 10 November 2015 did not contain Companies House Current Appointment Report as required … you have submitted this document with your administrative review application however, this evidence will constitute a fresh form of evidence therefore rejected."

The respondent has filed no witness statement or affidavit deposing to the checks carried out.

15. The appellant contends that he had every reason to ensure that documents would be safely and completely filed in support of his application. The most likely explanation is that the CAR was misplaced or missed when the decision came to be made by a member of the respondent's staff. The staff would be working in busy offices with many documents, the GCID record demonstrates that there was movement of the documents and in those circumstances one could have been misplaced or lost.
16. The respondent relies upon the documents, paragraph 13 and 14 above and upon the approach to be followed by the court in judicial review proceedings where there is a dispute upon the evidence. In R (McVey and Others) v Secretary of State for Health [2010] EWHC 437 (Admin) at [35] Silber J stated:

"In my view, the proper approach to disputed evidence is that:-

i) The basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct;

ii) An exception to this rule arises where the documents show that the defendant's evidence cannot be correct; and that

iii) The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant's evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies."

17. The basic rule reflects the approach of Lane LJ (as he then was) in R v Board of Visitors of Hull Prison ex p St Germaine No. 2 [1979] 1 WLR 1401 at 1410:

"Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the Board"

18. Stanley Benton J (as he then was) in S v Airedale NHS Trust [2002] All ER (D) 79 at [18-19] stated:

"18. It is a convention of our litigation that at a trial in general the evidence of a witness is accepted unless he is cross-examined and thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.

19. … I think I should adhere to the general rule except where the contemporaneous documents dictate that a witness statement must be incorrect."

19. The basic rule is clear, namely that where there is a dispute on the evidence in a judicial review application then in the absence of cross-examination the facts in the defendant's evidence must be assumed to be correct. The appellant relies on the exception to the rule identified in R (McVey and Others) at (ii), namely that the documents must show that the defendant's evidence cannot be correct. Mr Sharma on behalf of the appellant realistically accepts that the test identified at (ii) is a high one but contends that there can be adjustment to this test as was envisaged by Lord Scott in Dougherty v Birmingham City Council [2008] 3 WLR 636. He stated that judicial review procedure should be adjusted to enable issues of fact to be resolved with which Lord Mance agreed at [138] stating:

"…I agree with the observations … of … Lord Scott, about the possibility of adjusting judicial review procedure in appropriate circumstances to cover any necessary factual investigation and determination."

20. There is force in the submissions of Mr Sharma that the appellant had good reason to ensure that all relevant documents were filed with the application and that in a busy office the CAR could or may have been misplaced or lost. However the test, namely that the appellant's document shows that the respondent's evidence cannot be correct, is a high one. In determining this application it is not for the court to speculate, its role is to scrutinise the relevant evidence. From the outset, the respondent has maintained that no CAR was filed until it was submitted for the purpose of the administrative review decision. The appellant's evidence is not of so compelling a nature as to demonstrate that this account cannot be correct. At this substantive hearing, in the absence of such cogent evidence on behalf of the appellant the basic rule is to be followed, namely that the facts in the respondent's evidence must be assumed to be correct. Accordingly, I accept the evidence of the respondent that the CAR did not accompany the appellant's November 2015 application. This ground of appeal fails.

The advertising material

21. The evidence relied upon by the appellant to meet the requirement of Appendix A Table 4 41-SD(e)(i)(a) comprises pages from the website of Image Consultancy which are dated 27 or 28 June 2014. It identifies the nature of the work, namely business support solutions, the type of tasks/projects which could be undertaken by the company, the appellant is identified as the owner and director of the company, he is described as the business support manager and his address is given. On a separate page details are given of the creation of the domain name, namely 18 June 2014, it is recorded as expiring on 18 June 2015 and was updated on 19 May 2015. The same page states that three records have been archived since 11 December 2014. Beyond that no information is given as to activity on any other dates during the relevant period which would be July 2014 to August 2015.
22. The appellant's case is that the provision of this documentation fulfils all the requirements of the relevant section, dates are given, the online service would, by its very nature, result in local and national publicity. The applicant's name and the business activity are clearly identified. The difficulty with the appellant's argument is that 41-SD(e)(i)(a) has to be read in the context of Table 4. Table 4 states:

"An applicant who is applying for leave to remain and has, or was last granted leave as a Tier 1 (Post-Study Work) Migrant will be awarded no points under (d) above, unless he meets the additional requirements in (1) and (2) below.

(1) Since before the specified date below and up to the date of his application, the applicant must have been continuously engaged in business activity which was not, or did not amount to, activity pursuant to a contract of service with a business other than his own…"

The documents provided by the appellant must fulfil the specific requirements of 41-SD(e) but in the context of Table 4 they must also demonstrate that the appellant has been continuously engaged in business activity. The appellant's documents do not satisfy that evidential test. Insofar as there are dates on the documents relating to web pages which contain the relevant information there are only two, namely 27 and 28 June 2014. The separate page which identifies the dates of the creation, expiration and update of the domain name does no more than that. It does not demonstrate continuous engagement in business activity. There is no evidence before the court, as there was none before the respondent, as to what was happening on this website and in particular in the business activity of the appellant, in the period 11 July 2014 to August 2015.

23. The rules require rigorous compliance, either the relevant documents are provided or the application does not succeed. The other documents submitted by the claimant, his letterhead, cards containing his business name, do not begin to demonstrate business activity during the relevant period and in any event are undated. The failure by the appellant to provide documents demonstrating continuous business activity between the relevant dates was a finding on the evidence submitted by the respondent which was properly made. Upon this second ground the appeal fails.

Lord Justice Holroyde:

24. I agree.