[2024] UKUT 00281 (IAC)

I take grounds (1) and (2) together, as there is substantial overlap between the two. I begin by commenting briefly on the structure of the Immigration Rules and the interplay between Paragraphs 245DD(b); 245DD(k) to (n); and Appendix A, Table 5 and Paragraph 48.

I accept the Applicant’s challenge that the Respondent added a misleading gloss, when stating that it had awarded zero points for “Applicant is engaged in business activity at the time of the application.” The danger with that gloss is that it led the Respondent into error in navigating the prescriptive course of the Rules. The rubric is in the whole of Paragraph 245DD. It refers to the score at sub-para (b). It includes sub-paragraph (k), which is not mandatory, as sub-para (o) states that the respondent may decide not to carry out the assessment in sub-para (k) if the application already falls for refusal on other grounds. However, where the respondent is not satisfied as to the genuineness of an investment or business or its operation, sub-para (k) is plainly relevant and there are then the discretionary factors which may be considered at sub-para (l). If the Respondent is not satisfied with the genuineness of the application, then it cannot award relevant points. In the context of that overall rubric, the points table is set out in Table 5, and the specific criteria are prescriptive, as are the specified documents criteria at Paragraph 48. I accept Mr Malik’s submissions that the Applicant can only succeed if he meets the criteria in Table 5 and Paragraph 48. However, while these are necessary for an applicant to succeed, they are not sufficient for him to do so. That is not an end of the enquiry, simply because the Applicant has produced the relevant evidence. The Respondent can and indeed must go on to consider the genuineness of the business, so as to be satisfied and award points. The gate-keeper provision is 245DD(k) unless the application falls for refusal for other reasons.

Following that course of logic through, I accept Mr Skinner’s submission that one cannot consider the specified evidence provisions at Paragraph 48 of Appendix A in isolation from Paragraph 245DD, as that conflates necessary requirements as being sufficient.

The difficulty from a public law perspective with the Respondent’s impugned decisions is that at first sight, they have considered the necessary criteria of Table 5 and Paragraph 48, which, as Mr Malik points out, the Respondent does not dispute that the Applicant meets. The Respondent states that it has not considered Paragraph 245DD(k) to (l), but for all intents and purposes then goes on to consider the genuineness of the Applicant’s business, although it is unclear whether this is in relation to genuine past and present operation of the genuine business (sub-para (i)), genuine investment (sub-para (ii), noting that the Applicant was awarded points for investments), or genuine future intentions (sub-para (iii)). There is a mismatch between the Rules cited which the Respondent accepts are met (specified evidence) and the reasons for the decision, with the misleading gloss which seeks to join the two.

In relation to ground (1), the Respondent cited the wrong provisions of the Rules, by reference to its reasons for refusing the application (namely Paragraph 48 of Appendix A). I also accept the challenge that it failed to apply all of the correct provisions of the Rules, namely Paragraph 245DD(k), as supplemented by sub-paragraphs (l) to (n), for the reasons set out in relation to ground (2).

Ground (1) therefore succeeds on public law grounds.

In relation to ground (2), while it may be that there was an error in the use of a proforma decision and while I accept that there is no requirement for the format of a decision, the further consequence of the error in the structure of the decisions is that the Respondent has not referred expressly to having considered the discretionary factors at Paragraph 245DD(l). I proceed on the assumption that the reference to not considering Paragraph 245DD(k) is a mere typographic error. I also accept Mr Skinner’s argument that, as per Khatun, the Respondent’s decision is not undermined on public law grounds because it has not taken into account factors such as the viability and credibility of the source of the Applicant’s investment or the credibility of his financial accounts and job creation, even if those are factors which many people might have taken into account. That is to enter the forbidden territory of substituting the Tribunal’s view for that of the decision maker. However, even accepting that line of argument so far, I do not accept that in the impugned decisions, the Respondent can be inferred as having considered, but then chosen not to exercise its discretion, to evaluate certain factors, namely those in Paragraph 245DD(l). The error is not in deciding to ignore or place no weight on the sub-paragraph (l) factors. The error is in failing to consider that they might be relevant and that there was a discretion to consider and place weight on them at all.

I have considered how that error ran its course in practice. Where a Court or Tribunal is considering whether there has been a proper exercise of an administrative discretion where a rule permits, but does not require, consideration of certain matters, as in Khatun, a useful related assessment is that proposed by Schiemann J in R v Nottingham City Council ex parte Costello (1989) 21 HLR 301, p.309, cited with approval at §35 of Khatun:

In considering the case by the related proposition of whether the Respondent had made sufficient inquiries, here, on the one hand, the Respondent had material on the source of the Applicant’s investment, his business’s financial accounts and the creation of jobs. If, as appears to be the case, the business was not accepted as genuine, there were a whole host of obvious questions, including in relation to the reliability of the financial accounts and the nature and genuineness of the jobs which had been created, for which there was Real Time Information (‘RTI’) payroll data apparently showing thousands of hours worked. I express no view on the reliability of that evidence, but it begs the question why there were no enquiries and why the Respondent thought that this material was sufficient, but still rejected the Applicant’s application. It was, of course, open to the Respondent to decide not to consider such factors, but that is not explained anywhere. This is because, returning to the flip side of the public law error, the Respondent did not in fact consider whether to exercise its discretion under Paragraph 245DD(l) at all. This explains the inconsistency, as Mr Malik pointed out, between the zero points awarded in relation to the “business activity” and the points awarded for the investment in the business. Even if I accept Mr Skinner’s argument that a failure to follow the Respondent’s own guidance to its caseworkers does not amount to a public law error, it begs the question of whether the Respondent’s case worker even considered the underlying Rules.

Ground (2) therefore succeeds on public law grounds.