[2024] UKUT 00281 (IAC)

The Respondent reiterated that it had considered the genuineness of the Applicant’s application, when the impugned decisions were read in full. It was obvious that the reference to not considering Paragraph 245DD(k) was an error, taken erroneously from a template. Moreover, Paragraph 245DD(n) stated that:

“If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.”

That was common sense. Mere production of specified documents could not override the situation where the Respondent was not satisfied with the genuineness of the application. Moreover, I needed to consider the overall process of the Respondent reaching its decisions. The Respondent had had concerns and had invited the Applicant to an interview, at which he had been asked questions and had had chance to answer them. Following the interview, the Respondent had reached the decision. It was not incumbent on the Respondent to have considered every one of the factors in Paragraph 245DD(l), and its discretion was clear in the word “may,” in the same paragraph. The authority of Pokhriyal, cited by the Applicant, did not assist him, as the proposition depended on there being an ambiguity in the Rules, and there was no such ambiguity in Paragraph 245DD.

In response to the challenge that the Respondent had failed to consider relevant factors under Paragraph 245DD(l), even if they were discretionary, Mr Skinner referred to the authority of R (Khatun) and others v London Borough of Newham [2004] EWCA Civ 55, and in particular Laws LJ’s comments §§34 and 35, citing Lord Scarman in Re Findlay [1985] AC 318, as authority for the proposition that for a proper exercise of an administrative discretion in a situation, where a rule permits, but does not require, consideration of certain matters, it is only when a rule requires matters to be taken into account that a court will hold the decision invalid, subject to ‘Wednesbury’ review. It is not enough that a factor is one that may be taken into account, nor even that it is one which many people, including the court itself, would have taken into account, had they taken the decision. It was for the decision maker to decide the manner and intensity of enquiry to be undertaken into any relevant factor, unless no reasonable decision-maker, with the material before them, could conclude that the inquiries were sufficient.

Moreover, there were no procedural safeguards that otherwise would have benefitted the Applicant which had been omitted, because the Respondent had not referred expressly to Paragraph 245DD(l). The Respondent had raised its concerns and had interviewed the Applicant. The Applicant did not challenge a number of the Respondent’s concerns in the impugned decisions, namely the source of Level Three’s income as being from one client, Level Three Trading FZE, and the timings of payments by that client, namely when Level Three’s cash in its bank appeared to be low. The grounds seeking judicial review had not referred anywhere to the timing of payments and the Applicant had not identified any factor, relevant to the genuineness of his business, which the Respondent had failed to consider.