[2024] UKUT 00281 (IAC)

The Applicant says that first, the Respondent misapplied Table 5 and Paragraph 48(b)(iii) of Appendix A. Table 5, although not referred to in the impugned decisions, relates to points scored for extension applications and so must be applicable. The requirements of this and the specified documents needed as a result of Paragraph 48(b)(iii) were clear. It was also clear that the Applicant met those requirements.

In relation to Table 5, the Applicant had been awarded points for his investment and the creation of jobs. The Respondent did not dispute that the Applicant had, within the three months before the date of application, registered himself as director of Level Three, so that he met the requirements of Table 5. On the question of specified documents, at Paragraph 48 of Appendix A, the Respondent did not dispute that the Applicant had provided a business bank statement showing business transactions and a letter from a UK regulated bank on headed notepaper.

The points-based system was prescriptive, and on the parts relied on by the Respondent for rejecting his application, the Applicant met them. As the Court of Appeal had noted in Alam v SSHD [2012] EWCA Civ 960; [2012] Imm AR 974, at §35, the price of securing consistency and predictability was the lack of flexibility and this was endorsed, with a need for clear objective criteria, by the Court in its decision, EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517; [2015] Imm AR 367, particularly §28. The Court reiterated this in Kaur v SSHD [2015] EWCA Civ 13; [2015] Imm AR 526, particularly at §41. The impugned decisions were inconsistent with the clear language of prescriptive Immigration Rules and therefore contained a public law error.

In oral submissions, Mr Malik pointed out that nowhere in Table 5 did the Rules specify that the Applicant had to be “engaged in business activity at the time of the application”, for which the Applicant had been awarded zero points. As mentioned earlier, this appeared to be an impermissible gloss on the Rules. Instead, Table 5 of Appendix A required first that the Applicant had invested £200,000, which the Respondent accepted; second, that he had registered with HMRC as self-employed or registered with Companies House as a director of a UK company, which once again the Respondent accepted; third, that within three months before the date of the application, he was registered with Companies House as a director of a UK company; and fourth, that he must have taken over or invested in a business or established a new business that had created the equivalent of at least two new full-time jobs, which once again, was not disputed. In relation to the specified documents, and Paragraph 48, the Respondent did not and does not contend that the Applicant had failed to provide the specified documents. Instead, what the Respondent appeared to have done was to question the genuineness of the Applicant’s business activity. In doing so, the Respondent had failed to apply the provisions of the Immigration Rules which were relevant to the genuineness of a business, specifically Paragraphs 245DD(k) and (l). The Respondent stated that:

“…we have not carried out an assessment as detailed in paragraph 245DD(k) of the Immigration Rules as your application has been refused. We reserve the right to carry out this assessment in any challenge of this decision or in future applications for Tier 1 (Entrepreneur).”