[2024] UKUT 00281 (IAC)

As noted above, while the Respondent appeared to take issue with the genuineness of the Applicant’s business, the decision letter had stated explicitly that the Respondent had not carried out an assessment, as detailed in paragraph 245DD(k), and that the Respondent reserved the right to do so in the future. That provision indicated that the Respondent must be satisfied that the Applicant had established a genuine business, invested money referred to in Table 5, intended to continue operating that business and did not intend to take employment in the UK, other than in the terms outlined. 245DD(l) indicated that in making the assessment in (k), the Respondent needed to make an assessment on the balance of probabilities, and may take into account the following factors: the evidence which the Applicant had submitted; the viability and credibility of the source of money; the credibility of the financial accounts of the business; the credibility of the Applicant’s business activity; the credibility of the job creation; the nature of the business and whether it required mandatory accreditation or insurance; and finally, any other relevant information. Not only had the Respondent expressly stated that it had not considered 245DD(k) and reserved the right to do so in the future, but it did not appear that the Respondent had considered anything other than what it regarded as the credibility of the Applicant’s business activity, ignoring the wider evidence: the viability and credibility of the source of the money, the credibility of the financial accounts and the job creation, for which the Applicant had specifically been awarded points. Developing this, Mr Malik pointed out that the Respondent had made a positive decision to award points for job creation which was inconsistent with awarding zero for the Applicant’s business activity and indicated the Respondent’s failure to consider the wider subparagraph (l) factors. Not only had the Respondent failed to apply subparagraph (l), but in so doing, the Respondent had failed to apply its own guidance to its own staff, namely the Tier 1 (Entrepreneur) Guidance dated 6^th October 2021, on conducting a detailed assessment of a genuine entrepreneur. Included within that, in a loose document, internal page [19], it stated:

“Migrants making an extension application are subject to a genuine entrepreneur test.

….You must take into account the following:

•

the evidence they submit;

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the viability and credibility of the source of money referred to in Table 5 of appendix A;

•

the credibility of the financial accounts of their business or businesses;

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the credibility of their business activity in the UK;

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the credibility of job creation for which they are claiming points…;

•

any other relevant information.”

This was not simply a formal challenge but one also of substance where, even if Mr Skinner argued that there was discretion, the guidance went beyond that and made clear that the factors other than the credibility of the business activity were surely relevant. It was extraordinary to have awarded points for job creation but not to have considered the genuineness of job creation when considering the genuineness of the business. Mr Malik referred to the case of Pokhriyal v SSHD [2013] EWCA Civ 1568; [2014] Imm AR 711, in particular §42, as authority for the proposition that if the Respondent had declared that it would adopt a more lenient interpretation of the Rules then Courts and Tribunals could permissibly hold the Respondent to that more lenient interpretation.