[2024] UKUT 00281 (IAC)

The context is that the Tier 1 (Entrepreneur) visa was part of a “points-based system”, under which those applying had to meet a specific set of requirements, for which they would be score “points”. (The particular visa route is now closed and has been replaced, which is why reference is in the past tense, but the requirements remain relevant to this application for judicial review). Visas are granted provided that (as well as meeting the other requirements) an applicant has sufficient points. The Applicant says that the Respondent applied a wrong part of the Rules, so that, just as applicants would fail to score points if they did not meet prescriptive requirements, the Respondent was bound to award points if the requirements were met. That was the cost and corresponding benefit of a system designed to minimise uncertainty.

In that context, the Respondent refused the Applicant’s application on the basis that he scored insufficient points under Appendix A (Attributes), when he had needed 75 points, as required under Paragraph 245DD(b) of the Immigration Rules. Appendix A included two parts relevant for the purposes of this appeal. The first part was a set of “available points” for visa extension applications such as the Applicant’s, set out in “Table 5”. In Table 5, points were awarded for investment; registration with HM Revenue and Customs or Companies House; and the creation or the addition of specified sustainable new jobs. The award of points also depended on a visa applicant providing specified documents, as stipulated in the section, “Business activity: specified documents,” which begins at Paragraph 47 of Appendix A. This was cited because although the Applicant had made the required investment and was a self-employed director in the business, the Respondent did not accept that he was engaged in the business activity in question at the time of application. The Respondent expanded on this in its reasons.

In its decision, at page [108]/CB onwards, the Respondent refused the Applicant’s application on the basis that no points were awarded for “Applicant is engaged in business activity at the time of application.” I pause to note the Applicant’s submission that there is no such provision is in the Rules, and this is a gloss on what is in the Rules, merely Paragraph 245DD, linked to Table 5 of Appendix A, in turn linked to specified documents at Paragraph 47 onwards.

The Respondent gave its reasons, referring to Paragraph 48 of Appendix A:

“48.

The applicant must provide the following specified documents to show that they have established a new UK business or joined or taken over an existing business, and that they are engaged in business in the UK when they make their application: [sic]

(b)

if the applicant is a director of a UK company or member of a UK partnership, they must provide: …..

(iii)

a business bank statement from a UK account which shows business transactions, or a letter from the UK bank in question, on its headed paper, confirming that the company or partnership has a bank account, that the applicant is a signatory of that account, and that the company or partnership uses that account for the purposes of their business.”

The bank statements you have provided show income coming in from only one client who shares a very similar name to your business. Throughout the bank statement, towards the later part of 2022, income seems to only come in when the business bank funds are running low.

Subsequently we requested an interview for yourself to attend. Upon receiving the interview documents, we have raised a few concerns regarding credibility of your business. On Question 16 ‘How do you advertise your products or services?’ You answered with ‘We have a website, but most orders come from clients We are planning to start an amazon store’, then on Question 18 ‘Does your business have a website address?’ you answered with ‘www.lvlthree.co.uk’, upon checking this, the website does not exist. Upon further investigation, the domain of www.lvlthree.co.uk’ is available for purchase which means it has not been registered, this was checked on https://domains. google/. This contradicts the information you have given us through your interview.

On Question 31 ‘Why do your clients have a similar business name' you responded with ‘I have recently invested in this business’. On Question 33 ‘Did you have any relations with your client Level Three Trading FZE prior to opening your business in the UK?’ You answered with 'Yes’. You were subsequently asked on Question 34 ‘What sort of relationship did you have with them?’ you answered with ‘They are old friends of mine since the last 15 years’ The reasoning you have provided as to why the business name is very similar to your client brings a question of credibility to your business as investing in a business doesn’t usually relate to having a very similar name. As well as this, you have stated to have been friends with them for 15 years. Your bank statements that you have provided from the request for further information we had sent on 05/03/23 do not show income coming in from anyone else apart from this one business who you have stated to have known for 15 years. These bank statements were from January 2022 to January 2023. Considering these and the issue with the website you have stated to have been advertising your products/services which does not exist, we are not satisfied that the business claimed for is a genuine business. Therefore, you have not been awarded any points in this area.”