Secretary of State (Entrance Clearance Officer) v Mostafa & Ors, R (on the application of)

The First Respondent (‘the Respondent’) applied to the Entry Clearance Officer (‘the ECO’) for entry clearance as a Representative of an Overseas Business. The ECO refused that application in the Decision. The Respondent then applied to the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) for judicial review of the Decision. The UT quashed the Decision. The Secretary of State on behalf the ECO now appeals to this court, with the permission of Stuart-Smith LJ.

On this appeal the ECO was represented by Mr Biggs. Mr Malik KC represented the Respondent. I thank both counsel for their written and oral arguments, which were very good, and helped me better to understand the issues.

For the reasons given in this judgment I would allow the appeal. The Decision was not based on a misunderstanding of the meaning of the relevant provisions of the Immigration Rules (HC 395 as amended) (‘the Rules’), and was open to the ECO on the facts.

The Rules are the ‘rules laid down by the Secretary of State as to the practice to be followed in administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode…’ (section 1(4) of the Immigration Act 1971 – ‘the 1971 Act’). Section 1(4) of the 1971 Act gives a general indication of the sorts of provisions which the Rules must include. Section 3(2) of the 1971 Act requires the Secretary of State to lay before Parliament statements of the Rules, and of changes to the Rules. If either House of Parliament disapproves such a statement by a resolution of that House, the Secretary of State must, ‘as soon as may be make such changes or further changes as appear to him to be required in the circumstances’ and lay a further statement before Parliament. The Rules are not delegated legislation (Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230).

There was no dispute about the correct approach to the construction of the Rules in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 (‘Mahad’). In paragraph 10 of a speech with which the other members of the Appellate Committee agreed Lord Brown said, ‘The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy’. He added that ‘the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended…that intention is to be discerned objectively from the words used, not to be divined by reference to supposed policy considerations’ or by reference to any instructions given from time to time by the Secretary of State to officials.

But in general, principles of statutory construction do apply to the construction of the Rules. One such principle which applies to the Rules (or at any rate, which applies to the points-based provisions of the Rules) is that ‘The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically’ (see paragraphs 2, 3 and 7 of the judgment of Lord Briggs (with which the other members of Court agreed) in R (Wang v Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125). Mr Biggs also drew our attention to paragraph 10 of the judgment of Lord Mance in Bloomsbury International Limited v Department for Environment, Food and Rural Affairs [2011] UKSC 25; [2011] 1 WLR, in which he said that ‘…the statutory purpose and general scheme by which it is put into effect are of central importance…’.

A further principle which applies to the construction of the Rules, including the points-based provisions of the Rules, is that the decision-maker must consider the relevant transaction ‘in the round’ rather than by reference to each constitutive step in the transaction (ibid, paragraphs 6 and 7). Lord Briggs added that there was no dispute in that case either, that the principles described by Lord Brown in Mahad also applied to the construction of the Rules (paragraphs 29 and 30). He also said (paragraph 31) that neither principle to which he had referred suggested that, ‘apart possibly from a relaxation of strictness, the interpretation of the [Rules] involves any significant departure from the general principles of statutory construction’.

It is convenient to start this judgment with the relevant provisions of the Rules. The relevant provisions are in Appendix Representative of an Overseas Business (‘the appendix’). In what follows, I will shorten that description to ‘Representative’. The appendix is introduced by the following text:

The substantive paragraphs of the appendix all begin with the suffix ‘ROB’. For concision, I will refer to relevant paragraphs by their numbers only. A person may apply as a Representative for entry clearance or for ‘permission to stay’ (formerly ‘leave to remain’) (paragraph 1.1). If a person applies for the latter, he or she must apply on form ‘Application to extend stay in the UK…’ (paragraph 1.1(b)). An applicant for an extension of permission to stay must be in the United Kingdom and there is a list of the types of permission which will bar an application for permission to stay under the appendix (for example, permission as a visitor (paragraph 1.5)).

Paragraph 4 is headed ‘Work requirement for Representative…’. The overseas business ‘must be active and trading outside the UK, with its headquarters and principle [sic] place of business remaining outside the UK’ (paragraph 4.1). The applicant must have been recruited outside the United Kingdom by the business (paragraph 4.2). Paragraphs 4.3 and 4.4 provide:

Paragraphs 5.1 and 5.2 are headed ‘Genuineness requirement for the Representative…’. Paragraph 5.1 requires the decision-maker to be satisfied that the applicant is a genuine Representative. Paragraph 5.2 provides that the decision-maker must not have ‘reasonable grounds to believe the business is being established in the UK by the overseas business … mainly so the applicant can apply for entry clearance or for permission to stay’.

Paragraphs 8.1-8.6 contain ‘Additional business requirements’ for a Representative which an applicant must meet (paragraph 8.1). Among other requirements, where an applicant is applying as a Representative, he or she must be ‘a senior employee of the overseas business with the skills, experience, and knowledge of the business necessary to undertaking the role, with full authority to negotiate and take operational decisions on behalf of the overseas business’ (paragraph 8.2). Paragraph 8.5 lists the evidence from his or her employer which the applicant must provide.

Where an applicant is applying for permission to stay and ‘has or was last granted permission as a Sole Representative’, the applicant must meet several requirements which are listed in paragraph 8.6. They include that the applicant ‘must have established the registered branch or wholly-owned subsidiary of the overseas business for which they were last granted permission under this route’, and must be ‘engaged in full-time employment and must supervise the registered branch or wholly-owned subsidiary that they have established, and must be required by their employer to continue in that role’. The applicant must provide evidence which includes evidence of the business that has been generated since the last grant of permission, evidence of the formal establishment of the business, and a letter from the employer confirming that the applicant ‘supervises the branch’ and is still required in that employment.

Paragraph 10.1 provides for the approach of the decision-maker. If the decision-maker is satisfied that ‘all the suitability and relevant eligibility requirements are met, the application will be granted, otherwise the application will be refused’. If the application is refused, the applicant can apply for an administrative review (paragraph 10.2).

If the applicant applies for entry clearance or for permission to stay and does not have or did not last have permission under the appendix, he or she will be given permission for ‘a period not exceeding 3 years’ (paragraph 11.1). If the applicant has, or last had permission to stay under the appendix, he or she will be given permission for a period which does not exceed two years (paragraph 11.2). Paragraph 11.3 lists the conditions to which such a permission must be subject. The conditions include that the applicant must only work for the overseas business (paragraph 11.3(b)).

A person qualifies for settlement under the appendix if he or she has spent the last five years before the date of the application ‘in the UK with permission as’ a Representative (paragraph 14.1). Such an applicant must meet, for the period described in paragraph 14.1 (‘the 14.1 period’), the requirement for continuous residence in the United Kingdom (in accordance with Appendix Continuous Residence) (paragraph 15.1). Paragraph 16 is headed ‘Work requirement for settlement by a Representative of an Overseas Business’. Throughout the 14.1 period the overseas business must have been active and trading with its headquarters and principal place of business outside the United Kingdom and the applicant must been employed and working full-time for overseas business, and not have worked for any other entity or engaged in business on their own (paragraph 16.1). The applicant must ‘be required by their employer to continue in the role for which their last period of permission was granted’ (paragraph 16.3).

The additional requirements for settlement by a Representative include that throughout the 14.1 period, ‘the applicant must have established and then supervised the registered branch or wholly owned subsidiary of the overseas business they represent…where that branch or subsidiary was actively trading…’ (paragraph 16A.2.(b)). The applicant must provide evidence of the business that has been generated (paragraph 16A.3(b)) and a letter from the employer confirming that the applicant has supervised the branch or subsidiary since the last grant of permission (paragraph 16A.3(c)).

The Respondent is a citizen of Bangladesh. The Respondent applied for entry clearance on 27 March 2022 as a Representative. The Second Respondent is her husband. The Third and Fourth Respondents are their children. The Second, Third and Fourth Respondents also made applications for entry clearance which depended on the Respondent’s application. We were told that the application form had attachments, including an affidavit sworn by the Respondent. The parties did not put the application form or its attachments before the UT. On this appeal they also relied on the documents from the decision-making process alone, and we have done the same. I infer from the fact that it was discussed in the interview of the Respondent, which I summarise in the next section of this judgment, that one of the documents which was attached to the application was a business plan.

The Respondent was interviewed on Teams on 20 October 2022. There is a transcript of that interview. There was no interpreter and the interview was conducted in English. This is not surprising as one of the requirements for entry clearance as a Representative is a particular standard of English (see paragraphs 6.1 and 6.2 of the appendix). The interviewer (identified only as ‘BD’) introduced him/herself and said that he/she would be interviewing the applicant about her application. The interviewer added that an ECO had reviewed the documents and done background checks. The Respondent’s application had been referred for interview to ‘gather more information and give you the opportunity to explain any discrepancies or provide further information’. The interviewer had to record the questions and answers so would be typing during the interview; in other words, the transcript was typed by the interviewer.

In three ‘opening stock questions’ the applicant was asked for her personal details, whether she could hear clearly and understand the interpreter and whether she was well enough to be interviewed. The applicant answered those questions appropriately. The letters ‘RQ’ appear in the transcript of the interview before some answers. We were told in the hearing that ‘RQ’ stands for ‘Repeat question’. It means that the interviewer asked the question twice.

The Respondent was asked whether she had had help with her application form and said she had done it herself. She was asked twice whether she had any help completing her business plan, and, if so, from whom (question 5). She said that ‘the plan was completed and prepared by the management of Probhidi Apparel LTD’ (‘PAL’). She added ‘I wasn’t involved but I do understand the aim of the business by setting a base office in the UK. By the board of directors 4 persons’.

Asked whether she had paid them (question 6), she replied, ‘No, no’. Question 8, asked twice, was ‘How did you hear about the overseas business representative route?’ Her first answer was ‘The company select the positions they wanted to set up a liaison office in the UK because our clients, our exporters, are UK and Europe based’. Her second answer was ‘I don’t know actually its selected by our company management’. She was asked what sort of business she intended to set up in the United Kingdom (question 9). She replied, ‘Because I told you before our 6 main export-based countries are Germany, France, UK, Italy, Spain and the Netherlands’. That was a reference to her previous answer. She was asked the same question again. She replied ‘Its winter clothing garments manufacturing business. I will do the business development and implementation for the company because I’m a current marketing manager for PAL’.

She was also asked to describe what her business idea was (still question 9). Her answer was that she had to develop and implement the marketing strategy, oversee the KPI of sales and marketing team, policy formation and budget preparations for the sales and marketing team. The question was repeated. She said, ‘First we have to set up a liaison office in the UK and the liaison office will maintain the UK and European business associates to fulfil our target achievements of marketing areas and also existing buyers maintenance’. Her reply when asked whether the business already existed in the United Kingdom was ‘No we are exporting our produce material to different clients different companies specifically buyers’. When asked to give details of PAL, she could not remember which telephone number had been given in the business plan, or the telephone numbers of the factory (question 10).

She was asked, in question 12, for ‘full detail’ of the products/services she supplied and sold. Her answer dealt with what was currently being exported to the United Kingdom. She was then asked, twice, what products/services she would supply and sell in the United Kingdom. Her answer was that they were selling ‘the winter clothing’s’ [sic]. She then described two types of buyer; direct buyers like Marks and Spencer’s and importers like JY Joe ‘…they are 2 buyers, basically importers’.

She was asked twice (question 13) how much she intended to charge for goods and services. She said actually ‘we haven’t prepared the UK charge budget yet because we have to set up the office facilities first, then we have to study the market and the demands and you know how much we can produce and more export there after preparing and reviewing all the documents the management will decide. I will be there to report all the related areas, all the studies to the management’.

In question 14, she was asked twice what research she had done to indicate this business was required in the United Kingdom. Her reply was that in the past five years ‘all the manufacturers from the development countries such as Bangladesh, Cambodia, Pakistan, Vietnam, Myanmar and Switzerland have increased their shares of produce materials in the last 5 years because the winter season is [sic] become more harsh and extended in the UK and Europe so their winter clothing demand is increase that’s why’ (my emphasis).

Her answer when asked what relevant experience and education she had (question 15) was ‘Now I’m working as a marketing manager for PAL since April 2015 and before that I also work as a marketing person in a software company from 2008 to March 2015 so there is a long time since I have been working as a marketing person and get this knowledge of this area so the management decide to send me for this position’. She was asked twice what her recruitment plan was. She said that this would be ‘set by the company management, they will set up the office and other facilities, the area will also be chosen by them most probably be near to the central of [sic] London, or north west zone which will easy be communicated with the buyers’. She added, when asked again, ‘First I will be alone the sole representative and once the office facilities will be set up then management will decide to recruit more employees’ (question 16).

Question 17 asked where in the United Kingdom the business would be based. The interviewer asked this question twice. Her first reply was that the area would be chosen by the management. She repeated what she had said about its likely location in London. She added when asked again, ‘It will be fixed after getting the visa, no address yet for the business but the management want it close to central London’.

The Respondent was also asked what details about her current circumstances supported her decision to establish a business in the United Kingdom now (question 18). Her answer was ‘Because my past working experience, my seniority in PAL and the years of service, the management has decided this position and the job description as sole representative and the responsibilities of the positions were given to me. My family is happy for me to come to the UK’. She was asked (question 19) why she wanted to start the business in the United Kingdom rather than branching out locally. She said ‘We are doing business here but you know we face some difficulties, language barrier and the communication with direct buyers and as well the time differences to European countries and Bangladesh is a barrier for sales that’s why we wanted to set the base office there’.

Question 20 referred to a statement in the business plan that Germany and France were a bigger market than the United Kingdom. The Respondent was asked why the business was not being established there rather than in the United Kingdom. She replied that the United Kingdom is ‘nearer to Bangladesh, more than Germany and France. That is the reason we want to set up the base office in the UK. Bangladesh time difference is less than Germany and France. Because we want to decrease the communication barriers with our buyers so for that reason UK will be the perfect position for a base office’.

The Respondent was asked how she was chosen for as an ‘overseas business representative’. She said that her name was ‘put forward by managing director, then the managing director recommended my name to the chairman and other board of directors they call for an interview and there they selected me’ (question 21). In response to a follow-up question about the method of selection, she said ‘Yes it was an interview. Yes I’m a senior person in the business because I report directly to the MD and given the authority to make operational decisions on behalf of the company’.

She said in answer to question 23 that the main competitors in the United Kingdom were ‘the local manufacturers and international both will be our competitors, like Galaxy Knitwear in Leicester, JM Cooper, MNS knitwear etc’. She was asked whether they had any agreements yet with any prospective clients (question 24). She said, ‘The company has agreements…’. She was asked with whom. Her answer was ‘No I don’t know it’s the completely [sic] the management decisions till now, because when the sole representative starts her work, then this managerial decision from the UK, basically the marketing decisions will be taken by the representative and the representative will report directly to the MD regarding all marketing and implementation matters’.

There were four ‘Closing stock questions’. She was asked whether she had understood all the questions, whether she was still feeling fit and well and whether she was happy with the conduct of the interview (questions 30, 32 and 33). She answered ‘Yes’. She was also asked whether she wanted to add anything, and said ‘No, I don’t want to add anything’ (question 31). She was told that the interview was over and that the ECO would ‘now consider all the evidence provided’ including the interview, and ‘will make a decision on the balance of probabilities whether or not you are a genuine entrepreneur’.

The ECO had considered the application under the appendix. The ECO referred to, and quoted, paragraphs 5.2 and 8.2 of the appendix (see paragraphs 11 and 12, above). The ECO noted that the overseas business was PAL, which is a garment manufacturing and export business. The ECO quoted the Respondent’s answers to questions 5, 13, 16 and 17 (see paragraphs 21, 25, 27 and 28, above).

In the next paragraph of the Decision the ECO said, ‘When asked for basic information that a genuine candidate should be able to answer, you were unable to provide information on where you plan to base the business as you do not have a location picked out, you did not know what your costs and charges for your products and services are going to be and by your own admission you did not have a hand in creating the proposed business plan as this was created by the management of PAL’.

The ECO added, in the following paragraph, ‘Lastly, when questioned about your business plan you have stated that Germany and France are a bigger market than the UK, why not establish your business there instead of in the UK? You stated that “UK is nearer to Bangladesh, more than Germany and France. That is the reason we want to set up the base office in UK. And here the UK Bangladesh time difference is less than Germany and France. Because we want to decrease the communication barriers with our buyers so for that reason UK will be the perfect position for a base office”’. The ECO commented, ‘This is incorrect and further supports that you do not have the required skill or knowledge of this business to be able to open and run a new branch in the UK.’

The ECO’s conclusion was ‘Therefore I am not satisfied that you meet the current requirements under Appendix ROB5.2 and ROB8.2’. The decision-maker notified the applicant of her right to apply for an administrative review of the case. The decision-maker also refused the applications of the Second, Third and Fourth Respondents.

Mr Malik settled the Respondent’s grounds for administrative review. The Decision was said to be wrong because of a case-working error. Paragraph 8.2 of the appendix does not require an applicant to show that she can ‘open and run a new branch in the UK’. The ECO had read words into paragraph 8.2 which are not there. The ECO made several further points in the Decision but did not explain how they related to paragraphs 5.2 and 8.2 or were determinative. The Decision was also based on an unfair process. The applicant had not been given an opportunity to comment on potentially adverse matters and the interview questions had not been flexible enough to include follow-up questions which would have enabled the applicant to explain or clarify her answers.

In a further decision dated 23 June 2023, which I summarise briefly, the Secretary of State maintained the Decision. The Secretary of State was satisfied that the Rules and published policy guidance had been correctly applied. ‘There were concerns within your initial application and the Entry Clearance Officer (ECO) has correctly requested that you be interviewed for you to answer any discrepancies within the application’. The Secretary of State rejected the argument that paragraph 8.2 does not require an applicant to show that she can open and run a new branch in the United Kingdom. As a genuine senior employee of the business, ‘it would be expected of you to provide detailed information about your business, business plan and future actions you would need to take in order to run and open the UK branch. Based on your interview responses and the lack of detail within them, we are satisfied that the ECO was reasonable to conclude that you do not have the required skills and knowledge of the business to be able to open and run a new branch in the UK’.

The Secretary of State was also satisfied that the ECO had explained the Decision ‘accurately…in clear language for you to understand’. The Secretary of State rejected the arguments based on fairness. ‘The interview is your opportunity to expand on statements made within your initial application including your business plan in order to portray your genuineness for the role. At the end of the interview, you were asked if you were happy with the conduct of the interview and if you had understood all questions to which you responded yes’. She had been asked if she wanted to add anything and had said, ‘No’. The Secretary of State was satisfied that the interviewer was competent and that the Respondent had been given ‘ample opportunity to provide representations and failed to do so’. The Secretary of State maintained the original decision under paragraphs 5.2 and 8.2.

The Respondent applied for judicial review of the Decision on two grounds.

The UT refused permission to apply for judicial review on the papers on 12 January 2024. The Respondent renewed her application for permission at an oral hearing. The UT gave permission after an oral hearing on 16 February 2024, at which the parties were represented by the counsel who represented them in this court.

There was a further oral hearing on 6 June 2024. The parties were again represented by the same counsel. In a determination promulgated on 3 September 2024, the UT granted the application for judicial review and quashed the Decision. The UT interpreted the two grounds for judicial review as a ground relating to the language of the Rules and a procedural ground (determination, paragraph 5).

The UT summarised the grounds of defence (paragraphs 7-11). It described the legal framework in one paragraph, and only quoted two paragraphs of the appendix (paragraphs 5.2 and 8.2). The UT summarised the parties’ submissions in paragraphs 13-31.

The UT recorded a submission by Mr Malik that the requirements to be met by a Representative were different from and should not be confused with the requirements for applications as a Tier 1 Entrepreneur. The purpose of the former provisions was not to enable a person to set up and run her own business. All the Respondent had to do was to set up the business; she did not have to run it. That ‘operation’ could be short-term. The ECO had made no finding that the Respondent had been employed mainly so that she could apply for entry clearance. The rules were independent and separate. If there was a suggestion that the Respondent had acted disreputably, she should have been given an opportunity to respond to that. This was not a case in which dishonesty was alleged, but the principle applied to disreputable conduct.

The purpose of the interview was not explained. The Respondent had given ‘entirely cogent and proper answers’ to questions 12, 13, 14, 15, 16 and 17. The ECO did not refer to question 13 in the decision. The answers to questions 19-21 were clearly about linguistic and cultural differences, not physical distance. There were no follow-up questions, but the ECO should have asked for clarification.

The business could not have a budget when it did not have an office. The Respondent could not know the details of the products which would be chosen when the business had no physical presence in the United Kingdom. It was not the Respondent’s business plan, but that of the company. The ECO was clearly mixing up the requirements of the appendix with the requirements for a Tier 1 Entrepreneur. The Respondent clearly did have the necessary skills, knowledge and experience.

It was not clear which part of Respondent’s answer to question 20 was ‘incorrect’. It was not clear whether the answer was about communication differences. The ECO should have asked a question to clarify this. The Respondent’s role was to establish, not to run, a branch. There was substantial doubt about the ECO had understood the evidence. The ECO had not explained how the application was mainly to obtain entry clearance.

Mr Biggs submitted that Mr Malik’s approach entailed a Representative coming to the United Kingdom to do research to set up a branch and then going home. ‘Establishing’ means setting up and running (see for example paragraph 4.3). The relevant experience is experience which would equip the Respondent to establish and run an overseas branch in the United Kingdom. ‘Required’ in the Decision was a synonym for ‘necessary’. This introduces the concept of knowledge of the market in the United Kingdom. Mr Malik’s argument ignored the second of three relevant requirements.

Paragraph 5.2 was mandatory. Paragraphs 10.1 and 10.2 make clear that all the requirements in the appendix must be met, otherwise the application will be refused. The word ‘role’ in paragraph 8.2 must be read in its overall context.

The suggestion that the Decision should have referred to more of the interview was unworkable. Paragraph 8.2 was not satisfied, ‘not least because [the Respondent] did not know the basic information that a genuine candidate should be able to answer such as how much customers should be charged and where the branch should be based’. The answer that the United Kingdom was nearer to Bangladesh was ‘simply wrong’, and could not be explained away. ‘The response was indicative of someone who did not have the skills to open a branch in the UK’. Mr Biggs accepted that paragraph 5.2 was not addressed in terms ‘but given the nature of’ paragraph 5.2 the ECO was ‘compelled to rely on it’. It was triggered by the Respondent’s failure to satisfy the ECO that she had the skills necessary to open and run a branch in the United Kingdom.

The Respondent had made the application, which gave her an opportunity to make representations. There was no allegation of reprehensible conduct. Paragraph 5.2 was based on suspicion and did not imply wrongdoing. There was no obligation to raise every concern in an interview. The Respondent was on notice. A brief interview is enough. The Respondent had control over the relevant information; the burden of providing that information was on her. She had adequate notice of the interview and had time to prepare. What fairness required was a reasonable opportunity to provide relevant information.

In reply Mr Malik submitted that the UT was being invited to re-write the Rules by inserting ‘and run a business’ and ‘necessary’ in paragraph 8.2. He drew a contrast between the appendix and the relevant Tier 1 rules, which specifically say ‘establish and run’. The requirement here is to ‘establish’ but not to ‘run’ a branch.

The UT’s reasons for allowing the application for judicial review are in paragraphs 32-62 of the determination. The UT described the challenge as a ‘rationality’ challenge to the ECO’s ‘evaluation of whether [the Respondent] had the required skills for the “role” she was detailed to undertake in the UK. The question is what role and application was the ECO assessing?’ (paragraph 32).

The word ‘Representative’ in the title of the appendix was a guide to its purpose. The UT referred to and quoted the Introduction to the appendix. There was no reference in the Introduction to running the branch. Nor did the Introduction describe the role as ‘long-term’, by contrast with the role of a Media Representative. A requirement to work full-time is not a requirement to work long-term. The word ‘supervise’ does not mean ‘run’. The Decision did not refer to supervision. The ‘role or operation could indeed be short-term, with a view to recruiting local staff’.

The UT quoted paragraph 8.2. The ‘logical flow and sensible construction’ was that the applicant should have the skills knowledge and experience of the business overseas, not of a business in the United Kingdom. The UT rejected Mr Biggs’s argument that the ECO was entitled to expect the Respondent to understand the nature of the market in the United Kingdom. The UT’s response was ‘Necessary to undertake the role relates to establish and cannot extend to knowledge of the UK market when, specifically, the role is to establish the business in the UK with authority to negotiate and take operational decisions to establish the business … nothing in the rule indicates that the applicant should have knowledge of the UK market. There is no requirement for the applicant to remain in the UK to run [the business] or long term having established the business’ (original emphasis). The skills and knowledge required are ‘of the business overseas to enable the applicant to establish a branch office in the UK’ (paragraph 47).

A comparison with the requirements for a Tier 1 Entrepreneur reinforced that conclusion (paragraph 48). The applicant was not required to show they could run the business or do things like set the business plan, choose a place for the branch or know details about costs and charges. That assumption by the ECO was wrong (paragraph 49).

The ECO had conceded that no reasoning addressed paragraph 5.2. Reliance on paragraph 8.2 was not enough. The UT accepted that the genuineness of an application could be doubted if ‘there is a lack of evidence or vague or unspecific answers given in interview to evidently clear and reasonable questions and does not necessarily entail or impute “disreputable conduct”’ (paragraph 51). This was an application under the Rules; the Respondent was ‘on notice’ of the Rules, and she was presenting the material (paragraph 52). She was not accused outright of dishonesty. The UT was not persuaded that every challenge to the genuineness of an application ‘necessarily entails a charge of acting disreputably’ (paragraph 53).

The difficulty with the interview was the reference at the end (see paragraph 33, above) to the question whether or not the Respondent was ‘a genuine entrepreneur’. Despite some of the references to the right route, ‘the questions…are numerously geared towards whether the [Respondent] is an entrepreneur’. The UT referred to questions 5, 9, 13, 16, 17 and 18 (see paragraphs 21, 22, 23, 25, 27, 28 and 29, above). ‘Although some of the questions could refer to [the appendix], there would appear to be have been an interview formula adapted which included questions geared to the entrepreneur route’. That made the interview unfair. Cumulatively they showed a flawed approach and a misunderstanding of the application (paragraph 55).

The Decision referred specifically to questions 5, 13, 16 and 17 ‘to which the [Respondent] gave cogent responses as an employee not an entrepreneur. There is substantial doubt that the ECO applied the correct rule’ (paragraph 57). The conclusion of the Decision was ‘axiomatic to the reasoning’. The question about geography was ‘arguably not clear; even if it were this did not rationally found a refusal’. The Respondent was being tested ‘on her role as an overseas business representative not a cartographer’. Nor was it clear what it was that the ECO thought was ‘incorrect’ (paragraph 59).

There was no reasoning in the Decision about paragraph 5.2. The reliance on paragraph 8.2 was flawed. ‘There is substantial doubt as to whether the ECO understood the important matter of the immigration rule he/she was applying and thus in reaching a rational decision on relevant grounds’ (paragraph 61). The UT’s overall conclusion (paragraph 62) was that ‘the approach to [paragraph 8.2] discloses public law error [f]or the reasons given, and its application cannot, in this instance, support the use of [paragraph] 5.2’.

I agree.

I also agree.