Safeer & Ors, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 13, 2018, [2018] EWCA Civ 2518

Resolution Date:November 13, 2018
Issuing Organization:Civil Division
Actores:Safeer & Ors, R (On the Application Of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWCA Civ 2518

Case No: C6/2016/3277

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

UPPER TRIBUNAL JUDGE JACOBS

JR/3515/2016

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 13/11/2018

Before:

LORD JUSTICE HOLROYDE

and

LADY JUSTICE NICOLA DAVIES DBE

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Between:

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Rajiv Sharma (Counsel) and Hiren Patel (Solicitor Advocate) (instructed by Hiren Patel Solicitors) for the Appellants

William Hansen (Counsel) (instructed by Government Legal Department) for the Respondent

Hearing date: 24 October 2018

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Lady Justice Nicola Davies DBE:

  1. This is an appeal by Muhammad Safeer (the appellant) and his dependants, his wife and daughter, against a decision of Upper Tribunal Judge (``UTJ'') Jacobs dated 27 June 2016 whereby he refused permission to apply for judicial review to challenge the refusal by letter dated 3 December 2015 of the appellant's Tier 1 entrepreneur application and the subsequent administrative review decision dated 11 January 2016. The judge also certified the claim as totally without merit. Permission to appeal was granted by Sir Kenneth Parker sitting as a Judge of the Court of Appeal on 12 April 2017.

  2. The appellant and his dependants are Pakistani nationals. On 16 September 2007 the appellant arrived in the UK pursuant to entry clearance on a student visa. On 11 December 2009 he applied for leave to remain (``LTR'') as a Tier 4 general student. The application and subsequent appeals were refused, he became appeals rights exhausted on 30 September 2010. On 2 December 2010 he applied for LTR as a Tier 4 general student which was granted and extended until 15 August 2014. On 10 February 2014 his wife was granted entry clearance, she arrived in the UK on 12 March 2014 with their daughter. The entry clearance expired on 15 August 2014. On 6 August 2014 the appellant applied for LTR as a Tier 1 HS entrepreneur, his wife and child were listed as dependants. The application was rejected on 15 August 2014. On 16 August 2014 he and his dependants applied for LTR as a Tier 1 HS entrepreneur. The application and subsequent appeals were refused, he became appeals rights exhausted on 12 October 2015. On 6 November 2015 the appellant and his dependants applied for LTR as a Tier 1 HS entrepreneur. On 3 December 2015 LTR was refused with the right to an administrative review. On 11 January 2016 the administrative review decision was given and the refusal was maintained. On 31 March 2016 the appellant, and his dependants, issued proceedings for judicial review. On 27 June 2016 UTJ Jacob refused permission and certified the claim as totally without merit (``TWM''). On 22 July 2016 UTJ Jordan refused permission to appeal which was subsequently granted by Sir Kenneth Parker.

    The Immigration Rules

  3. The rules relevant to the appellant's application have since been amended. Identified below are the rules current at the time of the application. The requirements for LTR as a Tier 1 entrepreneur migrant were set out in paragraph 245DD of the Immigration Rules. An applicant for Tier 1 entrepreneur LTR was required to have a minimum of 75 points for Attributes under paragraphs 35 to 53 of Appendix A (paragraph 245DD(b)). The appellant's last LTR was as a Tier 1 post-study migrant, thus he was only eligible to be awarded points under the provisions of Table 4(b)(ii), (b)(iii) or (d) (paragraph 36B of Appendix A). In making his application the appellant relied on Appendix A, Table 4(d) which states:

    ``(d) The applicant:

    (i) is applying for leave to remain,

    (ii) has, or was lasted granted, leave as a Tier 1 (Post-Study Work) Migrant, and

    (iii) has access to not less than £50,000.

    ...

    An applicant who is applying for leave to remain and has, or was last granted leave as a Tier 1 (Post-Study Work) Migrant will be awarded no points under (d) above, unless he meets the additional requirements in (1) and (2) below.

    (1) Since before the specified date below and up to the date of his application, the applicant must have been continuously engaged in business activity which was not, or did not amount to, activity pursuant to a contract of service with a business other than his own and, during such period, has been continuously:

    · Registered with HM Revenue & Customs as self-employed, or

    · Registered with Companies House as a director of a new or an existing business. Directors who are on the list of disqualified directors provided by Companies House will not be awarded points.

    (2) Since before the specified date below and up to the date of his application, has continuously been working in an occupation which appears on the list of occupations skilled to National Qualifications Framework level 4 or above, as stated in the Codes of Practice in Appendix J, and provides the specified evidence in paragraph 41-SD. `Working' in this context means that the core service his business provides to its customers or clients involves the business delivering a service in an occupation at this level. It excludes any work involved in administration, marketing or website functions for the business, and.

    The specified date in (1) and (2) above is:

    · 11 July 2014 if the applicant has, or was lasted granted, leave as a Tier 1 (Post-Study Work) Migrant...''

    The appellant had to meet the additional requirements in (1) and (2) above and provide the specified evidence identified in paragraph 41-SD which states:

    ``41-SD. The specified documents in Table 4 and paragraph 41, and associated definitions, are as follows:

    ...

    (e) If the applicant is applying for leave to remain, and has, or was lasted granted, leave as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant, he must also provide the following evidence that he meets the additional...

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