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Upper Tribunal Judge Stephen Smith
Upper Tribunal Judge Stephen Smith:
This application for judicial review concerns an application for leave to remain under Appendix Representative of an Overseas Business of the Immigration Rules (“Appendix ROB”). There are two principal controversial issues:
The first is the point in time at which UK-based subsidiary must be “wholly-owned” by an overseas business for the purposes of para. 8.6(a) of Appendix ROB. Put simply, does the UK-based subsidiary of an overseas business have to have been wholly-owned by the overseas business from its incorporation (as the Secretary of State contends), or is it sufficient for it to be wholly-owned by the overseas business by the time an applicant makes the application under Appendix ROB (as the applicant contends)?
The resolution of that issue leads to the second issue: whether the Secretary of State irrationally refused the first applicant’s application for further leave to remain as the Representative of an Overseas Business, under Appendix ROB.
The decision under challenge was taken on 29 September 2023, by way of an Administrative Review decision (“the AR decision”) which upheld the initial refusal decision dated 23 April 2023.
- Heading
- Upper Tribunal Judge Stephen Smith
- Factual background
- The decisions under challenge
- Grounds of challenge
- Submissions
- The law
- First issue: Appendix ROB 8.6(a) requires overseas ownership from incorporation
- The second issue: refusal not irrational
- Non-citation of ROB 5.1 not material
- Secretary of State entitled to conclude that the business was not genuine etc
- Nothing turns on the references to invoices and business documents
- Remaining facets of ground 2
- Conclusions