CA-2024-002224 - [2025] EWCA Civ 1398

Discussion

The main linked reasons why the UT found for the Respondent were that it considered that there was substantial doubt whether the ECO applied the right provisions of the Rules to the application, and/or had misunderstood or misapplied the relevant provisions. This approach was based on the UT’s views that paragraph 8.2 required the applicant to have the skills, experience, and knowledge of the overseas business, rather than of a business in the United Kingdom, and that there was no requirement in the appendix that the applicant should stay in the United Kingdom and run the business in the United Kingdom. All that was required was that the applicant should establish a branch in the United Kingdom. A contrast with the provisions about entrepreneurs, the UT thought, supported its interpretation of the Decision, as did questions asked in the interview which were geared towards entrepreneurs. The comment at the end of the interview also supported that view, the UT thought.

The first question is what the relevant provisions of the Rules require. I reject Mr Malik’s submission that the only relevant provisions of the appendix are paragraphs 5.2 and 8.2, because they are the only provisions to which the ECO referred in the Decision.

I accept the submission of Mr Biggs that the meaning of those provisions is informed by the other provisions of the appendix. In particular, the provisions of paragraph 8.2 are informed by the fact that the appendix is a route to settlement and by paragraphs 4.3, 4.4(a) and 8.6.

Paragraphs 4.3 and 4.4(a) show that the role is a full-time role, and that the role of the Representative is not just to establish, but also to ‘supervise’ the branch once established. That is necessarily something which will take longer than just establishing a branch and leaving, as the fact that the appendix is a route to settlement also indicates.

Paragraph 8.6 is important because it shows what is intended by the word ‘supervise’ in this context. It supports the view that the word ‘supervise’ in paragraph 4.4(a) is the functional equivalent of ‘run’, and that it involves tangible steps in generating trading income for the overseas business.

The main difference between the two words is that ‘supervise’ is more appropriate to describe the role of a senior employee, in relation to a branch of an overseas business which is owned not by her but by the overseas business, in contrast with the role of an entrepreneur, which is to ‘run’ his own business. But since the words are functionally equivalent, and for practical purposes, synonymous, the ECO did not err in law in using ‘run’ instead of ‘supervise’. I reject Mr Malik’s semantic argument that there is a material difference in this context between ‘run’ and ‘supervise’ and that the ECO erred in law in using the word ‘run’.

That analysis shows that the two foundations of the UT’s interpretation were mistaken (see paragraph 75, above).

First, the UT was wrong to think that the appendix only requires the skills, experience, and knowledge of the overseas business, as the Representative is required to have the skills, experience, and knowledge necessary for the role, which is to establish and to supervise a branch in the United Kingdom, and to generate business from that branch.

Second, the UT was wrong that all the appendix requires is for the applicant to establish the branch. It is clear that the applicant is also required to have the skills, experience, and knowledge necessary to supervise the branch, once it has been established.

A correct understanding of the meaning of the relevant provisions informs the questions which it will be relevant to ask in an interview. The questions which were asked were all relevant, in different ways, to the question whether the Respondent did have the skills, experience, and knowledge necessary to establish and supervise a branch of an overseas business in the United Kingdom. The UT’s mistaken interpretation of the appendix means that it was also wrong to think that any of the questions, still less a significant number of them, was or were directed to the wrong issue. I therefore accept the submission of Mr Biggs that, in context, the reference to ‘entrepreneur’ in the comment at the end of the interview was a slip.

The Respondent is a senior employee and the appendix required her to have a good grasp of English; which is why there was no interpreter at the interview. In that context, the ECO was entitled to take her answer to question 20 at face value, and to conclude that it showed that she did not have the necessary skills, knowledge and experience.

Nor can it be said that the ECO relied on an unbalanced selection of unfavourable answers. There were other answers in the interview from which the ECO could have concluded that the Respondent did not meet the requirements of the appendix, particularly when the number of questions which had to be repeated is taken into account. Her answers to questions 9, 13, 19 and 24 are examples.

The ECO was not satisfied, for the reasons which he/she gave, that the requirements of paragraph 8.2 were met. In those circumstances, paragraph 10.1 of the appendix required the ECO to refuse this application, without more.

Whether or not paragraph 5.2 was satisfied does not matter, in that situation; but having considered the interview and its impact on the application, I consider that the ECO was entitled, if that was necessary, also to find that there were reasonable grounds to believe either that the branch was being established, or that the Respondent was being appointed as Representative, mainly so that she could apply for entry clearance. It was open to him to consider that there was no other plausible explanation for her appointment to the role when she did not have the skills, experience, and knowledge necessary for the role, as required by paragraph 8.2.