EK & Anor v The Secretary of State for the Home Department

Under the 1972 Immigration Rules (HC 510), the listed immigration categories were the main categories and did not create a mandatory rule that an applicant outside them must be refused further leave. Leave as a businesswoman could therefore be granted on a discretionary basis to a person who had entered as an au pair.

Paragraph 28 did not make settlement conditional on proving compliance, in every year of leave, with the profit and maintenance requirements in paragraph 21. Those requirements governed the initial business application and first extension. The Rules contained no precise code excluding a spouse's contribution to household living costs. A dormant or wholly inadequate business could nevertheless be a relevant discretionary consideration.

The Secretary of State appealed against Immigration Judge Callow's decision of 3 September 2010 allowing the Turkish appellants' appeal against the refusal of indefinite leave to remain.

The first appellant had entered as an au pair and was later granted leave as a self-employed provider of domestic services under the Ankara Agreement. Her husband had leave as her spouse and was entitled to work. The refusal treated her business profits as insufficient to maintain and accommodate the couple under the business provisions of HC 510.

The central issues were whether paragraph 28 required continuing proof that business profits supported the family, and whether a former au pair could lawfully have been granted business leave under the 1972 Rules.

1. The Secretary of State's appeal was dismissed. The Immigration Judge made no material error of law in allowing the appellants' appeal.

2. Paragraph 28 of Statement of Immigration Rules of Control after Entry (HC 510) required the decision-maker to consider all relevant circumstances. It did not impose a mandatory condition that, in each year after business leave was granted, the applicant prove compliance with the requirements in paragraph 21. Paragraph 21 was directly concerned with the initial application to establish a business and the first extension of leave.

3. Paragraph 4 described only the main categories of persons who might receive leave. It did not require refusal merely because an applicant did not fall within an expressly listed category. It was therefore open to the Home Office to grant business leave to a person who had entered as an au pair. The Tribunal declined to follow the contrary construction in OT (Ankara Agreement: Students, Businessmen, Workers) Turkey [2010] UKUT 330 (IAC), although that issue was not necessary to dispose of this appeal.

4. The Rules did not prescribe a rigid division between maintenance and accommodation, nor prohibit third-party contributions to living expenses. The husband's lawful earnings could be considered when assessing the couple's ability to live. In any event, the Home Office had not tested the evidence before the Immigration Judge and was bound by a factual finding open to him.

5. A completely dormant business, or one generating funds plainly incapable of supporting anyone in the United Kingdom, could be a highly relevant discretionary consideration. It would not, however, amount to failure of an unexpressed mandatory rule. The appeal was dismissed and the Immigration Judge's decision was not remade.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State's appeal and upheld the Immigration Judge's allowance of the appellants' appeal.
• Immigration Judge: on 3 September 2010, allowed the appellants' appeal against the refusal of indefinite leave to remain.