In R (on the application of Ghadam) v Secretary of State for the Home Department, the Home Office was found to have followed an incorrect procedure in refusing an extension of a Tier 1 (Entrepreneur visa).
Tier 1 Entrepreneur Visa Refusal Successfully Challenged
The applicant, an Iranian citizen, arrived in the UK in July 2019 under a Tier 1 (Entrepreneur) visa. He registered two businesses, both of which were dissolved due to the pandemic. A third company, “Level Three Technology Solutions Limited,” was established in 2021. In November 2022, the applicant applied to extend his visa. The Home Office refused the application in May 2023, stating that he did not score enough points under Appendix A and questioning the genuineness of his business. The applicant’s administrative review was also rejected in July 2023.
In October 2023, the applicant applied for a judicial review on three grounds: misapplication of the rules, failure to assess his business credibility, and procedural unfairness.
The Upper Tribunal ruled in favour of the applicant on the first two grounds, finding that the Home Office had applied the wrong provisions and had failed to properly consider relevant factors. The applicant also succeeded in the third ground, with the tribunal ruling that the process had been procedurally unfair, particularly regarding an error with the business website. The tribunal rejected the Home Office’s claim that the outcome would not have been different if these errors had not occurred.
In conclusion, the tribunal identified significant flaws in the Home Office’s initial decision and review process, highlighting the unnecessary litigation costs incurred due to these mistakes.
Implications of the Decision
The decision has important implications for Tier 1 Entrepreneur visa holders and in particular extension applicants. The decision highlights that the Home Office is obligated to properly assess the authenticity and genuineness of a business before refusing an extension. This ruling reinforces that doubt alone isn’t sufficient for refusal. This scrutiny may also apply to other business visas, making strong evidence crucial.
The case also shows the importance of applying the correct rules. Applicants can challenge decisions if the Home Office misapplies regulations, ensuring fairness across visa categories.
Procedural fairness is also significant. Errors such as incorrect website details and poor assessment procedures were deemed unfair. This reinforces the need for transparency in immigration decisions, giving applicants grounds to challenge unfair processes.
The case also highlights the need for robust evidence, including business records and explanations. Applicants can successfully challenge decisions that are based on template errors or incomplete assessments.
The Home Office must also fairly consider all relevant factors in relation to business credibility, especially for small or new businesses.
Finally, the decision also raises the question why the case went to a full hearing, pointing to the potential for reducing legal challenges by addressing errors early.
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DavidsonMorris are UK business visa specialists, with expertise in Tier 1 extension applications and settlement applications based on Tier 1 status. If you have a query about this court decision, or about a specific UK application, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
