[2024] UKUT 00281 (IAC)

The Applicant also submitted that the Respondent’s conclusion was irrational and reached in a procedurally unfair way. In particular, the Respondent had been irrational in criticising Level Three’s website as not having been registered, when the Applicant had correctly identified the website address in his covering application letter, which the Respondent’s own interviewer had apparently mis-transcribed and even upon administrative review, had then sought to blame the Applicant for failing to correct. The Respondent’s subsequent suggestion that the website was lacked “functionality” was opaque. If it were suggested that “this web address” was the correct website, it did not say so and any suggestion was supposition. The implication was that the Respondent had still not looked at the correct website. If it had referred to the correct website, it still made no sense. The new website was unarguably functional, in the sense that it worked. How it was otherwise deficient was unexplained.

In any event, if the Respondent had had concerns about the website or any other matter, she ought to have put them to the Applicant in line with her public duty to act fairly. The Applicant relied on R (Mushtaq) v ECO (ECO – procedural fairness) IJR [2015] UKUT 224 (IAC) and Anjum v Entry Clearance Officer(entrepreneur – business expansion – fairness generally) [2017] UKUT 406 (IAC). It was not enough for the Respondent to point to the fact of an interview. The Court of Appeal had considered and rejected a similar argument in Balajigari and others v SSHD [2019] EWCA Civ 673; [2019] Imm AR 1152, (in particular at §159 to §160.) Superficially, the fact of an interview might appear to meet the test of procedural fairness, but the substance was in the detail of what an interviewee could be expected to answer or address by way of any concerns, if they were unaware in advance of what those concerns were. These principles applied as much in a case which did not involve allegations of dishonesty as in cases where the Respondent alleged dishonesty. The Respondent has not alleged that the Applicant is dishonest. The Applicant did not suggest that he ought to have been provided with a list of questions, but he could have easily addressed concerns over the website, had he known this was an issue and the same was true about concerns regarding the relationship between Level Three and Level Three Trading FZE.

In addition to the procedural concerns, the substance of the Respondent’s concerns were also irrational. First was the issue of the website. Second, was a suggestion that because the Applicant and his client had some similarities in their business names, that somehow indicated that the Applicant’s business was not genuine. This ignored the documentation indicating that the two companies were accepted as being completely different entities, without any shared ownership etc. Merely to leap to the conclusion that a business was not genuine, because of its name was similar to that of its client, was also irrational.